Dismissal and misconduct outside of the workplace

Due to the expansion of social media and technology, employee’s work and private lives are increasingly becoming blurred. Sometimes, it is not clear whether employee’s work and personal lives are separate. This raises issues for employers when acting on managing misconduct outside of work. 

Activities outside of work do not constitute grounds for dismissal unless they impact the employee’s ability to do their job, which may affect relations with their colleagues, customers or suppliers or whether this brings the business in to disrepute. Therefore, a dismissal would be fair if the employer can justify that this has an impact on their employment relationship.

ACAS’ code of conduct on disciplinary states, “if an employee is charged with, or convicted of a criminal offence this is not normally in itself 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.”

In addition, conduct that results in custodial sentence may “frustrate” an employment contract, bringing it to an end automatically. Frustration means the contract cannot be fulfilled. However, it is important for employers to consider factors such as the nature of the offence, the length of the sentence, impact of the business due to employee’s absence and if there is any damage to the employer’s reputation. Frustration of a contract may not apply for short period of sentences. Therefore, employers must be careful if relying on the contract being frustrated rather than carrying out a fair dismissal procedure.

Negative comments on social media

An employee’s conduct may damage the employer’s reputation as seen in a case by Crisp vs Apple Retail. The tribunal found that the employee was fairly dismissed for making derogatory comments about Apple’s products on Facebook as Mr Crisp has no control over his comments being shared. However, Apple placed importance on their brand image and they stated in their employee policies that protecting their image is a “core value” and their policy confirmed that making derogatory comments in social media is likely to constitute as gross misconduct.

So what must employers consider after employee misconduct?

Employers must consider whether the employee is able to carry out their work after the misconduct and the relevancy of the conduct to the workplace. Would this risk the company’s reputation? Also, they must consider if there is a breakdown of employment relationship with colleagues and clients. Also, it is important to consider what steps if any, can be taken to allow the employee to remain in employment without any business risk. Employers must ensure their policies are clear and examples are provided on misconduct and gross misconduct.

In addition, it is crucial that employers follow a fair disciplinary procedure, as with any dismissal. This will include an investigation and establishing the consequences of the employee’s actions.

For further guidance on how to manage matters outside of the workplace or advice on disciplinary matters including dismissals, login to your 'my BALI' area and access your BALI HR and H&S service.

Article sourced from Quest