Misconduct outside work: overview
Elizabeth Stevens of Steeles (Law) LLP begins a series of articles on dealing with misconduct outside work with an overview that looks at whether or not it is reasonable for employers to take action against employees because of their misconduct outside work and the procedure for doing so.
Introduction
Disciplinary issues that occur in the workplace and during working hours are usually fairly straightforward for employers to address. However, it is more difficult for an employer to deal with misconduct that has been committed outside the workplace (for example if an employee is charged with, or convicted of, a criminal offence as a result of his or her activities outside work).
Criminal conduct
Employers often make the mistake of assuming that criminal conduct outside work provides the ground for a fair dismissal, particularly if the employee is being held in custody. However, this is not necessarily the case. The issue of whether or not conduct outside work can justify disciplinary action will depend on the nature of the conduct and the position that the employee holds. Key considerations will be the extent to which the conduct in question impacts on the employee's ability to carry out his or her job and whether or not it has the potential to damage the employer's reputation.
The Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) makes clear that, if an employee is charged with, or convicted of, a criminal offence, this is not normally, in itself, a ground for disciplinary action. The code states: "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." Further guidance on dealing with criminal charges and convictions is set out in the Acas guide: discipline and grievances at work (PDF format, 898K) (also on the Acas website), which accompanies the code.
An employer must be able to show a genuine connection between an employee's conduct outside work and his or her employment, before it takes disciplinary action. For example, if the employee's role involves handling money and he or she is suspected of committing theft, this could justify dismissal. Similarly, an employee who is suspected of committing an act of violence and whose job involves working with children or vulnerable adults may also legitimately be subject to disciplinary action. An employee who is convicted of a motoring offence and whose licence is revoked can potentially be fairly dismissed if his or her job requires a significant amount of driving, unless the employer can temporarily assign the employee to different duties or allow him or her to make alternative transport arrangements (for example, by taking public transport and taxis) for the period during which he or she is banned from driving.
Reputational damage
It may also be fair to dismiss an employee whose activities have been widely reported and, as a result, have brought the employer's name into disrepute. This is particularly the case where the employee holds a senior position or has regular contact with clients or customers.
In Post
Office v Liddiard [2001] All ER (D) 46 (Jun) CA, the employee
travelled to France during the 1998 World Cup and was subsequently convicted of
being involved in football hooliganism, for which he was sentenced to 40 days'
imprisonment. Following widespread press coverage in a "name and shame" campaign
and condemnation by the Prime Minister, the employee was dismissed for gross
misconduct on the basis that his conduct had brought the employer into
disrepute. His unfair dismissal complaint was upheld by an employment tribunal
and the Employment Appeal Tribunal (EAT). However, the Court of Appeal disagreed
and held that the employer was entitled to rely on the conviction (in
Fair procedure
However, even if the conduct in question is of the most serious nature, such as a violent or sexual offence, and the connection with the individual's employment means that the employer can justify taking disciplinary action, a dismissal will be unfair if the employer does not follow a fair procedure. The employer should carry out a proper investigation of the facts, give the employee the opportunity to state his or her case and consider whether or not there is an alternative to dismissal.
This can prove difficult if the employee is in custody pending a criminal trial or where a criminal investigation is ongoing. In these circumstances, the Acas guidance makes clear that the employer is not required to wait for the outcome of criminal proceedings before taking disciplinary action. Indeed, due to the length of time it normally takes for criminal prosecutions to be concluded, it is usually preferable for the employer to commence disciplinary proceedings at an earlier stage.
If the employee is unable (through imprisonment) or unwilling to take part in the employer's disciplinary proceedings, the employer can still carry out as full an investigation as possible, making it clear to the employee that if he or she does not take part, it will make a decision on the basis of the information available and that this could result in dismissal. If the disciplinary hearing is going ahead in the employee's absence, the employer should give him or her the opportunity to make written representations.
Non-criminal conduct
Even if an employee is not charged with, or convicted of, a criminal offence, the employer might still have grounds for a fair dismissal for conduct outside work. The standard of proof required for a criminal conviction ("beyond all reasonable doubt") is much higher than the test applied to determine the fairness of a dismissal, as established in British Home Stores Ltd v Burchell [1978] IRLR 379 EAT). In the employment context it is necessary for the employer to hold only a genuine belief, based on reasonable grounds, that the employee committed the misconduct. If that conduct has a bearing on the employee's job (for the reasons examined above), the employer might be entitled to take disciplinary action.
Certain conduct outside work, even if it is not criminal, may give the employer grounds to dismiss the employee. For example, in Pay v Lancashire Probation Service [2004] IRLR 129 EAT, a probation officer who worked directly with sex offenders was dismissed when it came to light that he engaged in sadomasochistic activities in his spare time. His activities were publicly advertised via various websites that included explicit photographs of him. His dismissal was held to be fair for "some other substantial reason" under s.98(1) of the Employment Rights Act 1996. The employment tribunal was satisfied that his activities were incompatible with his professional role as a probation officer. It also held that Mr Pay's right to respect for his private and family life under art.8 of the European Convention on Human Rights was not engaged, since he was performing the activities in public. This decision was upheld by the EAT.
In Pay, there was no evidence of any criminal offence having been committed, but the activities in which the employee participated outside work, in public, were regarded by his employer as being incompatible with his position as a probation officer. Dismissal in these circumstances was regarded as being within the range of reasonable responses available to the employer.
Employee in custody
If an employee is in custody as a result of conduct that has no bearing on his or her job, and is unable to attend work, the question arises as to whether or not it is unreasonable for the employer not to keep the job open during the period of imprisonment. This will depend on the work that the employee carries out and the impact of his or her absence on the employer's business. If the employee is likely to be in prison for many months or even years, this may well give the employer grounds for terminating the employment, provided that it follows a fair procedure and it has no alternative to dismissal.
The Acas guide recommends that employers take disciplinary action in this situation, rather than rely on the employment contract being "frustrated" (see Frustration in the Forms of termination section of the XpertHR employment law manual for an explanation of the doctrine of frustration). Employment tribunals are normally reluctant to accept frustration as a reason for bringing the employment relationship to an end in circumstances where the employer can take disciplinary action to dismiss the employee.
Next week's topic of the week article will be a case study around dealing with misconduct outside work and will be published on 10 October.
Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).
Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.
