How employers should react to bad behaviour outside the workplace @cipd @cipdlondon @cmi_managers #HR

CIPD: “Organisations need a set of rules to avoid knee-jerk reactions. The increased reporting of incidents via social media, such as those recently involving Chelsea and Tottenham Hotspur fans, raises the issue of when behaviour outside work amounts to misconduct.

It is well established in law that employees’ actions outside the workplace can amount to misconduct, provided there is a clear link between that behaviour and the employees’ organisation or their role within it. This could include, for example:

  • behaviour which has bought, or has the potential to bring, the company into disrepute, perhaps because the employee and employer have been identified in the press or other media
  • actions outside work which have a detrimental impact on the workplace or which are linked to work – for example, poor behaviour at a workplace party
  • conduct which is incompatible with the role carried out by the employee – for example, cases involving dishonesty or theft outside work.

Before launching into any disciplinary process, employers should consider carefully the allegations that they will put to the employee and set out clearly the reasons why such behaviour has an impact on the employment relationship.

Case law
A number of cases provide useful guidance in this area. The general rule is that it may be fair to dismiss an employee for conduct outside the workplace provided that “in some respect or other it affects the employee, or could be thought to affect the employee, when he is doing his work” (see Singh v London Country Bus Services, 1976).

The circumstances in the case Post Office v Liddiard [2001] bear a striking similarity to the recent incidents involving football fans. In this case the employee was found to be fairly dismissed for bringing the Post Office into disrepute after being convicted of hooliganism following an attack on a French police officer. The key point here was that the employer could demonstrate that the employee’s actions damaged its reputation because of the widespread reporting of the hooliganism in national and international newspapers.

The case of Williams v Whitbread Beer [1996] is useful when considering action against employees who have misbehaved at work-related events. In this case, the employer had provided a free bar and the employee’s dismissal, due to an isolated incident of violent behaviour brought about by drunkenness at the event, was found to be outside the ‘band of reasonable responses’ available to an employer (a test used by tribunals when assessing the fairness of a dismissal) and subsequently found to be unfair.

Disciplinary action
When deciding what disciplinary action to take as a result of bad behaviour outside work, employers should:

  • weigh up whether the incident is a one-off
  • consider the seriousness of the incident
  • decide whether the organisation could take any responsibility for the circumstances surrounding it.

Off-duty conduct which has no bearing on employment is unlikely to justify disciplinary action.

Employers can go some way towards preparing for anticipated misconduct outside work by ensuring that disciplinary policies cover behaviour outside work, particularly if it is potentially damaging to the business’s reputation.

As with any disciplinary action, conduct outside of work must be thoroughly investigated and employers should follow a full disciplinary procedure. In cases involving the police it is normally advisable to conduct an internal investigation rather than relying solely on the police investigation.

It is also always necessary for employers to act reasonably in such circumstances and they should have evidence to back up any allegation of reputational damage or potential damage to the business.

By following the above tips, employers should avoid falling into the trap of dismissing an employee as a knee jerk reaction to misbehaviour outside work. Such a response, in all but the clearest of cases, is likely to be unfair.

Michael Hardiman is an associate in the employment law department at Shoosmiths

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