Misconduct outside of work

In the ordinary course of events, employers have little to no involvement in their employee’s personal lives and actions outside of work. But what happens when the employee does or says something outside of the workplace which the employer feels may have a material impact on their business?

Employers will become interested in employees’ extra-curricular activities where it might have an impact on the employer/employee relationship, for example because it harms the employer’s business, demonstrate the employee is not fit to perform their duties or create an unacceptable risk for the employer.

Where an employer is concerned about an employee’s behaviour outside of the workplace, it is possible for the employer to take steps to admonish the employee.  Should an employer wish to do this then it is important to follow the company’s normal practices in relation to investigating the misconduct.  This is likely to be set out in the company disciplinary procedure policy.  It is also important to bear in mind the ACAS guidance on disciplinary investigations and ensure that it is properly complied with.

The misconduct investigation should focus not just on the concerning events themselves but also on the negative impact that the employer believes will be had on the business.  The employee should be given the opportunity to not only comment on the facts of the misconduct but also the employer’s belief that it will impact on the business.  Examples of how the employee’s conduct may impact on the employer’s business include assessing if the actions of the employee have damaged important business relationships, damaged the employer’s reputation by creating negative publicity and attention for them, or is the misconduct of such a type as to mean the employee cannot be trusted to discharge their duties, e.g. a cashier who has been convicted of theft.

Establishing that an employee’s conduct has had an unacceptable impact on the employer’s business opens up the possibility for a disciplinary warning and, in serious cases, even the possibility of dismissal of the employee. If the employer does decide to dismiss then the employee can challenge the dismissal by bringing an unfair dismissal claim if they are eligible.  That would mean that the employer would need to show that the effects of the impact were such that they justified the dismissal of the employee.  As with all employee dismissals, paperwork will be very important and the employer should ensure that the entire disciplinary process is thoroughly documented so that it can evidence the basis of the dismissal decision to an employment judge if necessary.

With the rise in the use of social media, and more people sharing their lives online, the lines are blurring between private lives and work. Private lives are so public employers no longer need to seek out information on their employees activities outside of the office, in fact they can easily find themselves inadvertently involved in their employees activities whether they want to be or not. Employees should be aware that their personal choices may impact into their work lives, and the consequences have the potential to be devastating.

Please contact David Rushmere or Stephen Nolan if you would like more information about the issues raised in this article of any aspect of employment law.