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Can I discipline an employee for misconduct outside work?

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Generally, the actions of our employees outside of the workplace, on their own time, is their business and should not concern their employer.  However, an employee’s actions outside work may give rise to disciplinary action where they adversely impact the business, such as by causing reputational damage or posing a risk to health and safety. Our Employment Law team today examines a variety of circumstances where it may be appropriate for you to discipline an employee for things they have done outside the workplace.

Employee behaviour causing reputational harm

If an employee has engaged in inappropriate or offensive behaviour outside of work, you may be justified in taking them through a disciplinary procedure where their actions have damaged, or threaten to damage, the reputation of the business. Conduct that may significantly damage your reputation so as to justify disciplinary action includes criminal activity, disparaging or offensive social media posts, and flouting of Covid-19 restrictions.

In some cases it may be sufficient to show that employee’s actions pose a risk to your reputation, but disciplinary action is more likely to be justified where you can demonstrate that the employee’s conduct directly contributed to:

  • customer / client complaints;
  • negative publicity; or
  • lost business.

Employees facing criminal charges

A criminal investigation, charge, or conviction against an employee will not necessarily justify disciplinary action or dismissal. Any action you take against the employee should depend on the nature of the alleged crime and what effect it will have on the individual’s employment. Disciplinary action will almost certainly be justified where a criminal conviction prevents the employee from carrying out their duties, for example having their driver’s licence suspended when their job requires them to drive.

In order to discipline an employee on the basis that criminal allegations against them threaten the reputation of your business, you should be able to show a relationship between the charges alleged and the potential reputational harm. For example, in Lafferty v Nuffield Health, a tribunal found that the employee’s dismissal was justified because he had been accused of sexual assault and his job involved transporting adults under anaesthesia.

If one of your employees is under criminal investigation or charged with an offence, you may consider conducting your own disciplinary investigation. Seek clarification on the nature of the charges and give the employee a chance to explain their side.  You should also consider all possible courses of action and whether alternatives to dismissal, such as suspension or redeployment, would be reasonable in the circumstances.

Employees’ social media activity

Monitoring your employees’ posts on their personal social media accounts can be tricky because it brings up issues regarding privacy and free speech. If an employee has openly disparaged your business on social media, disciplinary action is likely to be justified if you can show that the post poses a real threat to your reputation, and that the employee had been informed that disparaging the employer online would be considered misconduct.

Social media posts which are threatening, homophobic, sexist, racist, or sexually explicit may also form the basis of disciplinary action. Not only could such content threaten the reputation of the business if you are identified as the person’s employer, but they could also constitute harassment, especially if the offensive comment or post is directed at another employee or group of employees. Where that is the case the matter should be investigated and dealt with according to your anti-bullying and harassment policy.

You should have a social media policy outlining clear guidance on what is acceptable for employees to post, and the consequences for breaching those standards.

Employees breaching Covid-19 Restrictions

After over a year of Covid-19 restrictions you may find that some of your employees have grown weary of following the rules. Employees who choose to break Covid-19 restrictions by attending large gatherings and refusing to socially distance may harm your reputation if their actions are publicised, and they could also pose a threat to the health and safety of others in your workplace. You may therefore be justified in disciplining an employee where:

  • they have posted pictures online of themselves openly flouting Covid-19 restrictions, and you are identified as their employer;
  • they physically attended the workplace after breaking restrictions, thus putting the health and safety of co-workers and customers at risk; or
  • they are unable to attend work because of their breach of restrictions and therefore cannot perform their duties.

To discourage such behaviour, you may want to update your disciplinary policy and procedures to include references to breaking Covid-19 restrictions and inform employees that flouting the rules may be regarded as misconduct.

If you identify conduct outside the workplace that could have a negative affect on the employee’s employment, you should still follow the appropriate disciplinary procedures. If an investigation concludes that an employee has engaged in misconduct, any disciplinary action you take against them should be reasonable and proportionate in the circumstances.

If you have a question regarding employee misconduct you would like to discuss, you can contact our Employment Team on 023 8071 7717 or email employment@warnergoodman.co.uk.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.