• Brent Newton

Employee Conduct Outside of Work


The past 18 months or so have been very challenging for employers and employees and have had a significant effect on virtually every aspect of life; stress has been considerable, tempers have run high, and the behaviour of individuals has come under scrutiny, particularly if they are seen to be behaving in a way that places them at odds with either public opinion or the law.


But what if this conduct comes to the attention of the individual’s employer? Outrage quickly becomes public in our online world, and it is short work to find out where somebody works and “dox” them – send details of their indiscretion to their employer with a demand for some sort of retributive action.


Does the fact that it took place outside the workplace change how it should be dealt with?


Misconduct in the workplace is a relatively easy matter for the employer to resolve. The accused is there in their capacity as an employee, under a contract of employment which will set out clearly what constitutes Gross Misconduct or Misconduct and what doesn’t. Processes will be in place to investigate and resolve such allegations and, provided the employer adheres to the correct processes, the end result should reduce the risks of claims coming in.


But if the alleged misconduct takes place outside the workplace, does the employer have the right to take disciplinary action – and even if they do, should they?


Generally, what an employee gets up to outside work is nothing to do with the employment relationship. However, situations may arise where an employee’s conduct beyond work hours may well affect how they work, the effect it has on colleagues and client relationships or the employer’s reputation.


In such a situation, the employee could well find themselves on the receiving end of disciplinary action and understandably so. However, the way that this is carried out, or even if it could be done at all will depend on a number of issues.


Where might these issues arise?


One of the danger areas is social media. For many companies, the full extent of social media usage and reach is not always appreciated; a careless tweet from somebody’s account can be picked up and sent round the world in minutes, and the mob mentality of social media “pile-ons” can make life very difficult for companies whose employees haven’t sought to distance themselves from their employers or hidden their connection. For many employees, there is an (entirely imaginary) barrier between their private social media use, public use and that carried out for their employment, and online behaviour can be a result of that misconception. Unwise comments about the employer or the brand can lead, and have on occasion led, to dismissal. The test really is “can the employee be linked to the employer?” e.g. a person wearing a lanyard with the employer’s name and logo on it, will be identifiable on videos, You Tube etc. Where the employee and employer can be linked and identified, then this will support any disciplinary action up to and including dismissal, as seen in the case of Preece v JD Wetherspoons plc.


In the case above, it is interesting to note:


The Tribunal ruled that despite Miss Preece’s belief about her account’s privacy settings, her comments were still in the public domain. Her right to freedom of expression could be fettered if the comments could damage reputation, in this case her employer’s. Miss Preece posted the comments whilst working; however, had she posted same comments at home the Tribunal stated that Wetherspoons might still have had the right to act in the same way.

Circumstances alter cases, however, and each claim will be judged on the facts relating to it. A robust social media policy, regularly updated to take into account new developments in this area, will serve as a good first line of defence, but needs to be operated in conjunction with awareness training to reinforce what is required of employees.


Work functions


Many companies hold work functions, and these often (but not always) take place outside office hours. These functions are usually aimed at promoting the company, generating leads and sales opportunities and encouraging employee engagement; in these events, the reputation and image of the company is on show for the world to see. With so much at stake, it is crucial that every employee attending should be on their best behaviour – which is not always guaranteed, considering the amount of (often free) alcohol that may be available. The potential for hidden stresses and issues to come to the fore in such an environment is obvious, as is the horrific damage that may be caused to a company’s reputation if they do.


Such consequences will often serve as justification for disciplinary action against the employee in question. As with other instances of misconduct, a lot can change depending on the circumstances. There is a big difference between a sales function in the afternoon at the company’s offices and a party late in the evening well after a promotional presentation has finished, and not even on the same premises.


If it turns out that the event is being attended by employees in the course of their employment and an incident of misconduct occurs, the employer could be held to be vicariously liable for it and have claims made against it as a result. Several court cases have explored the borderline between events and incidents where the connection between them and the employer is strong and demonstrable, and those where the distance is greater and liability far less clear cut.


Not only do employees attend work functions – they may also go out on their own, or with others, in a non-work event capacity. Can the employer take action against them, if it comes to their attention that their behaviour is not what it should be?


Criminal conduct and convictions


It might be thought that criminal behaviour outside work would be reason enough for disciplinary action – being a matter of public record, it would attract negative publicity for the employer and surely render the errant employee unemployable, but this is not necessarily the case, since being charged with (or convicted of) a criminal offence outside work might not count as misconduct. Paragraph 30 of the ACAS Code of Practice on Grievance and Disciplinary Procedures states that:


“If an employee is charged with, or convicted of, a criminal offence this is not normally in itself a reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers”.


However, if an employee is imprisoned for a significant period of time, employment is often terminated either by dismissal or frustration of contract.


We have dealt with this particular aspect of misconduct in depth in an earlier blog (see here)

https://www.rradar.com/post/criminal-offences-committed-outside-work-what-should-an-employer-do


What can employers do?


As is often the case with employment issues, the drafting and implementation of robust and well-thought-out policies and procedures will stand an employer in excellent stead when it comes to dealing with misconduct by employees, either within or outside the workplace. A list of activities outside the workplace that will not be countenanced can be included – this list will likely be non-exhaustive and serve as a guideline for employees.


Investigations


For some employers, reacting to first impressions about the alleged misconduct may mean that they fail to follow a fair and thorough investigation process, disciplinary hearing and right of appeal. It’s easy to panic when faced with something that may, at first sight, have the potential to do serious harm to a hard-earned business reputation but this can have serious negative consequences that may come back to haunt the hasty employer, particularly if they are challenged during the tribunal process on how fair and reasonable their response is.

Employers who default to the rather vague argument that whatever an employee does outside work has the potential to damage the business’ reputation may find that this cuts little ice with a tribunal. Far more likely to succeed is a detailed approach with clear evidence as to how the employer’s reputation has been damaged, including information on the degree of exposure that the misconduct has received


First things first


There are several questions that an employer should ask themselves before starting on the process that would lead to a (gross) misconduct dismissal:

  • Is there a direct connection between the misconduct and the employee’s job?

  • Can it be convincingly argued that this misconduct renders them unsuitable to continue in the job? If there is any doubt, second thoughts should be had about proceeding with the disciplinary process.

  • Does the misconduct pose a clear and credible risk for the employer’s reputation?

  • Would retaining the employee lead to a breakdown in relations between them and their colleagues?


If it can be shown that the misconduct does not affect their employment, the employee could bring a tribunal claim for wrongful or unfair dismissal – provided they have the qualifying period of service – as well as other claims (for example, discrimination or whistleblowing) if the employee believes that this may be the underlying reason behind their dismissal.