Over the last 12 months, we have all endured the significant restrictions placed on our activities and witnessed an increasing scrutiny of people’s everyday behaviour. This has included high-profile news headlines, including the suspension of SNP MP Margaret Ferrier for travelling on public transport after a positive Covid test; five Rangers FC first team players handed six-match suspensions after attending a party; and Sky News anchor Kay Burley being taken off air for six months having breached rules on gatherings.
Despite these breaches occurring away from the workplace, they have all had an impact on the individuals’ working lives. So what action can employers take for employees’ behaviour outside of work?
A balancing act
An employee’s behaviour outside of work generally falls outside the scope of the employment relationship. There are, however, various circumstances where behaviour outside of work can have an impact on the employment relationship. If out of work conduct affects an employee’s ability to do their job, impacts key business relationships or could cause damage to the employer’s reputation, then employees could find themselves subject to disciplinary proceedings and potentially even dismissal. In these situations, there is often a fine balancing act to be carried out between an employee’s right to a private life on the one hand and an employer’s right to protect its business on the other.
Common problem areas
Over time, case law has dealt with a number of problem areas relating to the impact of out of work conduct on the employment relationship.
- Social media use
There have been a number of high-profile instances over the years where employees have found themselves in difficulty over out of work social media use: a British Airways employee was fairly dismissed for criticising the airline on Facebook; an Apple employee was fairly dismissed for criticising an Apple-made app online; and there have also been situations where the forwarding of inappropriate content on personal email addresses to work contacts has justified dismissal.
There are, however, a significant number of reported cases where dismissals for out of work social media use have been considered to be unfair. Cases can often turn on their facts and the extent of the damage to the employment relationship will be a key consideration. A well-drafted policy setting out appropriate parameters on employees’ personal social media use is the employer’s first line of defence.
- Criminal behaviour
According to the Acas Code on Disciplinary and Grievance, if an employee is “charged with, or convicted of, a criminal offence, this is not normally in itself reason for disciplinary action”. The code goes on to say that consideration should be given to: (i) the impact of a conviction on the employee’s continued suitability to do their job; and (ii) existing working relationships.
Clearly, some criminal convictions could cause significant reputational damage where dismissal could be justified. Convictions can also have an impact on DBS checks and regulatory approvals that are required for certain roles. Where an employee is imprisoned for a significant period of time, employment is often terminated either by dismissal or frustration of contract.
- Work functions
Although not necessarily ‘part of the day job’, employees’ behaviour at work functions can often provide employers with grounds for concern. First, there is a significant likelihood of clients and prospects attending these functions. Inappropriate and/or offensive behaviour from employees could have a significant impact on the business’ reputation to justify disciplinary action.
In addition, there is the question of whether such events are actually attended in the course of the employee’s employment. If so, employers could be vicariously liable for employees’ inappropriate behaviour and potentially be on the receiving end of claims as a result.
What can employers do?
The implementation of policies setting out clear expectations for out of work behaviour and the consequences of breaches will go some way towards setting out expected standards of behaviour. This will also be a relevant factor in the defence of tribunal claims if employees are dismissed for out of work behaviours.
Social media policies now commonly delineate between use of social media for work purposes and private use, explaining expected standard of behaviour in each area. In the wake of the #MeToo movement, it is not uncommon for reminders to be issued to staff about expected standards of behaviour at work events – not only in relation to harassment, but standards of conduct more generally.
A fair and thorough process of independent investigation, disciplinary hearing and a right of appeal will be key to ensuring the procedural fairness of dismissals. At tribunal, employers will inevitably be challenged on elements of fairness and reasonableness.
While it is often attractive for businesses to argue an employee’s out of work actions have the potential to damage the business’ reputation, this should not be treated as a catch-all reason. As the now infamous case of Taylor v Somerfield illustrates, employers will require cogent evidence that an employee’s actions had caused or was likely to cause damage to its reputation.
Fraser Vandal is an associate at TLT