What action can an employer take if an employee’s behaviour outside of work is inappropriate?
Thanks to technology, people increasingly record events and then upload them to social media sites. This could show an employee displaying inappropriate behaviour. When does the behaviour of an employee amount to misconduct? Should employers get involved – and how?
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. For example – if the employee and employer have been identified in the press or other media. We have helped a client to manage an incident involving employees sending inappropriate pictures to a customer that had been emailed around the office!
- 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 – again. we have experience of this, dealing with an incident when an employee acted inappropriately with a client!
- 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.
- State the reasons why such behaviour has an impact on the employment relationship.
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”
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 the Acas Code of Practice / Company Disciplinary procedure followed. In cases involving the police it is normally advisable to conduct an internal investigation rather than relying solely on the police investigation and to aim to complete this prior to any action by the police such as removal of the employee from the business.
In addition, it 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.