If an employee is accused of misconduct in the workplace, it is usually clear to employers whether a disciplinary investigation needs to be carried out. However, if an employee is accused of misconduct that has taken place outside the workplace, employers may feel unsure as to whether they should, or even have the right to, initiate disciplinary proceedings.
If an employee is subject to a disciplinary process at work because of allegations of misconduct outside the workplace, they are likely to argue that the allegations have nothing to do with their employment and that their employer has no right to intrude in their personal lives.
If it is the case that the misconduct had no impact on their employment, the individual could bring claims in the employment tribunal for wrongful or unfair dismissal (if they have more than two years’ service), as well as a case for discrimination or whistleblowing if the employee believes that misconduct is not the real reason for dismissal. However, there may be factors that mean there is an overlap between the employee’s private life and their employment, and so it is not clear cut. For example, this could be the case if the employee’s behaviour outside work affected colleagues or if the individual used company property or systems to commit misconduct outside the workplace.
Risk to a business’s reputation or a loss of trust in the employee’s ability to do their job may also be factors. In some cases, criminal proceedings may directly affect the organisation (particularly if they are regulated and have a duty to report) or the employer may have a zero-tolerance policy on particular kinds of behaviour outside the workplace.
The recent Employment Appeal Tribunal (EAT) case of K v L is one such example of this overlap. The employer, a school, sought to rely on a breach of trust and confidence and reputational risk as grounds for dismissing a teacher who was charged (but not prosecuted) for possessing indecent images of children on a shared computer at home. The EAT found the dismissal to be unfair on two grounds, one of which was that the allegation of reputational risk had not been put to the employee properly. As a result they had not received sufficient notice of it and therefore did not have the chance to address it at the disciplinary hearing.
While there are a number of lessons that can be learned from this case, the point that is particularly relevant to misconduct outside the workplace is that it is vital for employers to frame all the allegations against the employee properly at the outset of any disciplinary proceedings. This is because when alleged misconduct takes place outside the workplace, employers may not always be in a position to fully investigate the actual misconduct. It is therefore important to also explain and investigate any overlap between the alleged misconduct and the employee’s employment.
The presence of any connecting factors (such as reputational damage or using work systems for personal use) may be sufficient grounds in themselves to take disciplinary action, or may be grounds for a dismissal on the basis of ‘some other substantial reason’ – even in cases where the employer is not in a position to fully investigate or make a finding on the misconduct itself. Therefore, it is usually best to put these ancillary allegations clearly and separately to the employee at the start, alongside the main allegations of misconduct. In doing so, employers can potentially avoid being put in the awkward position of being unable to take any action (despite harm being caused to the business) if the misconduct allegations themselves cannot be investigated properly or upheld. It also helps to protect the organisation if the employee defends themselves by arguing that the employer is being unreasonable in taking into account their private life.
Catherine Bourne is an associate at Kingsley Napley