Employees are entitled to their private lives but, on occasion, their conduct outside of work can have a direct impact on the working relationship.
In the past couple of weeks, violent unrest has broken out across the UK following a tragic knife attack on children and their dance teachers in Southport, Merseyside. Following misinformation posted online that the suspect responsible for the attack was a Muslim asylum seeker, violence erupted in the town following a vigil for the victims. In the days that followed, violence spread to other towns and cities, with far-right extremists said to be responsible.
In addition, the riots have sparked a number of instances whereby individuals have shared potentially offensive or racist views online or who have been involved in the riots, have been ‘outed’ to their employer.
The issue of whether these individuals should be dismissed from their jobs has been the subject of intense debate, with some arguing that this infringes on freedom of speech and others having adopted the mantra “if you’re racist and you’re fired, that’s your fault”. These events raise an important question: to what extent can an employer control or comment on employees’ activities outside of working hours?
Can employees be disciplined or dismissed for conduct outside of work?
This will largely depend on the facts of each case, but the crucial questions are whether the employer has any express rules in place regarding outside of work activity or whether the employee’s actions outside of work have affected their ability to do the job they were employed to do. While an employer might not ‘approve’ of the employee’s extra-curricular activities, if their actions are totally unconnected to their job and have no impact on it at all, it will be difficult for the employer to use its code of conduct or disciplinary policy (unless reference is made to the specific conduct complained of within the employer’s policies) to issue any sanctions against them.
Para 31 of the ACAS code of practice sates the following:
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.
Conduct is just one of the five fair reasons for dismissal laid down in the legislation and these type of activities might give the employer ‘some other substantial reason’ to also consider dismissal. This is a sort of catch-all category which employers may be able to rely on if none of the other potential reasons for dismissal (capability or performance concerns, conduct, redundancy or a breach of statutory duty) apply. For example, if relations with colleagues, suppliers or customers are adversely affected, or if the business itself has been brought into disrepute, as was the suggestion here, dismissal may be justified.
How will unfair dismissal cases regarding conduct outside of work be dealt with in an Employment Tribunal?
When evaluating claims for unfair dismissal, an Employment Tribunal will consider several factors, including the employer’s internal investigation and whether the decision to dismiss was reasonable in all of the circumstances. Each case will turn on its facts; however, in order to justify dismissal, the employer must be able to demonstrate:
- That it conducted a fair investigation
- That it considered all other avenues to dismissal, i.e. less severe sanctions that could have been applied that would have had the same effect.
- Why a dismissal on these particular facts was fair, i.e. that there was an objectively rational basis for believing that not dismissing the person would put the company at genuine risk of reputational damage.
The onus for establishing these facts rests with the employer. The Employment Tribunal must then decide whether in all the circumstances, the employer was actually justified in dismissing for that reason.
How to manage employees under police investigation
If you discover an employee is under police investigation – or where police have entered the workplace to arrest a staff member – employers should prioritise maintaining a calm and professional environment while also ensuring legal compliance and balancing the rights of all parties involved.
Initially, it’s crucial for employers to ascertain the nature and scope of the investigation without compromising the integrity of the process. Employers must conduct their own investigation, and while they should not rely solely on the police, they can liaise with them. The employee should be part of the investigation and asked to provide an explanation.
Employers should also consider the potential impact on workplace morale and productivity, proactively communicating with staff within the parameters of GDPR to provide reassurance and address concerns as appropriate.
Depending on the severity, the circumstances of the situation, and whether the allegations will have an impact on the employee’s ability to do their job, it may be necessary to temporarily suspend the employee pending investigation outcomes, ensuring adherence to employment contracts, company policies, and relevant legal requirements. If the employee is remanded in custody while the police investigation is undertaken, it may not be necessary to suspend or pay the employee because they are not ready, willing and able to attend work.
It’s imperative to handle such matters with sensitivity and discretion, seeking legal guidance, if necessary, to mitigate potential disruptions and ensure that a fair process is undertaken.
What can employers do to strengthen their position?
As an employer, you can never have absolute control over what goes on outside of work hours; however, there are a number of practical steps that can be taken to reduce the likelihood of such incidents occurring and protect your business should you find yourself in a similar situation.
- Draw up a code of conduct that sets out the standards and behaviours you expect of your employees. This can include respecting others and upholding the company’s values, and you can specify what these values are.
- Have a social media policy that meets your needs and manage social media within your workplace. Set out guidelines and best practices for your employees, making clear what is and is not acceptable. This will ensure that employees know the rules and will also help to protect your business from potential liability and criticism later. For example, you could state that employees are not allowed to:
- post pictures of themselves/others at work or wearing a uniform;
- express personal opinions about the company or reveal any details about the operations/performance of the company online or to others;
- make defamatory comments about the company, its managers or directors, or their colleagues,
- say anything that could be considered to be bullying or harassment.
Set out what the consequences of a failure to comply will be, e.g. disciplinary action that could result in warnings or dismissal.
- Update your disciplinary policy. Social media is still relatively new, and if you haven’t updated your policies in a while, this is a timely reminder to do so as you might find that there’s nothing within your existing policy that covers online content. It is worth remembering that one size does not always fit all, so while you should be consistent in how the rules are applied, you will need to assess each case on its own facts.
- Regularly train and update employees on your policies and procedures.
With potentially disastrous consequences should an employee’s conduct attract negative attention towards your organisation, implementing these measures now may save a lot of time and difficulty later on. Regarding the immediate situation, it would be prudent for employers to remind employees of any policies they currently have in place that may be relevant and the expectation to follow them, in particular any anti-discrimination policies, along with a warning that engaging in violence and discriminatory behaviour outside of work could lead to disciplinary action.
Mismanaged dismissals can invite a whole host of issues and are often not as straightforward as employers might hope. As well as the need to follow a fair process, situations can be further complicated by factors such as potential discrimination, whistleblowing, or the misconduct having been committed outside of work – so it’s always safest to seek advice.
