Legal

What can employers do about poor off-duty conduct?

24 Jul 2020 By James Tamm

Following the sacking of a football fan for flying a ‘White Lives Matter’ banner over a match, James Tamm outlines firms’ options if staff misbehave outside of work

Despite 24-year-old Jake Hepple insisting that his provocative stunt was not a racist act, and the police having determined that no criminal offence occurred, his employer was brought into the conversation when the incident made its way online and users discovered Hepple’s Facebook profile, which identified the company by name.

For HR professionals, the incident serves as a further reminder that employees’ conduct outside of work can seep into the workplace. Lately, with fresh momentum around the Black Lives Matter movement, more individuals who have shared potentially offensive or racist views have been ‘outed’ to their employer.

In these scenarios, it comes down to a delicate balancing act between freedom of speech and the potential consequences of inaction. In Hepple’s case, it is easy to see how the employer’s reputation may have suffered had it been seen to ‘co-sign’ his actions. No business wants to risk contracts being pulled or sponsorship or funding being withdrawn and, beyond that, will want to send a clear message about its values as an organisation. 

Can employees be disciplined or dismissed for conduct outside of work? 

Generally speaking, an employee’s conduct outside of work is not a matter for the employer unless it adversely impacts the workplace. However, there are plenty of examples of such behaviour negatively affecting colleagues or the employer itself. 

The type of behaviour will determine the process you would use as an employer. For example, where derogatory comments are made about work or colleagues on social media, or in the case of cyberbullying, this would be in the realms of misconduct so the employer could progress matters using its disciplinary policy. However, if comments or behaviour bring the employer into disrepute, then any potential dismissal here would probably fall under the category of ‘some other substantial reason’, so slightly different processes and considerations apply.  

Each case will turn on its facts, but businesses will need to be proportionate in their view about potential damage to their reputation as it doesn’t always follow that comments made by an employee will reflect badly on their employer. While the employer might not approve of an employee’s personal views or extracurricular activities, if this has no bearing on their job, it will be difficult to use its code of conduct or disciplinary policy to control, reprimand or dismiss them.

Keep in mind that when evaluating claims for unfair dismissal, an employment tribunal will consider a number of factors, including whether the employer conducted a fair investigation, whether it considered all other avenues to dismissal, and whether a dismissal on these particular facts was fair (in other words, whether there was an objectively rational basis for believing that not dismissing the employee would pose a genuine risk to the organisation).

The onus for establishing these facts rests with the employer, so employers will need to satisfy themselves that they can demonstrate the above before a tribunal. 

How can HR professionals safeguard against similar scenarios?

Employees are entitled to a private life and, for the most part, this is out of your control. This can be a daunting prospect, and while no employer can ever fully eliminate the risk of an employee’s actions bringing the organisation into disrepute, the following practical steps can strengthen your position:

Draw up a code of conduct that clearly establishes the standards of behaviour you expect from your employees, as well as your core values. This should be supported by the senior management team and made as accessible as possible. 

Develop a social media policy setting out what is and is not acceptable online conduct and the consequences of failing to comply, which may range from warnings to dismissal. For example, you could prohibit employees from posting photos of themselves or others at work, expressing personal opinions about the company or its clients or customers, or posting anything that is considered to be bullying or harassment. This will prevent employees from claiming they were unaware of the rules, thereby protecting you from liability and criticism later on.

Update your disciplinary policy. Check that your existing policy covers all bases in relation to out-of-work conduct, including online content. When applying your policy, remember that while it is important to apply your rules consistently, you will need to assess each case on its own facts. 

In these situations, defence is your best offence, so be proactive, unambiguous and use your policies, contacts and handbooks to set out your stall. While it may seem obvious to you that certain behaviours are unacceptable, it’s important to be even-handed in your dealings. Don’t forget that a tribunal will fully consider the matter from both yours and your employee’s perspective. For employers, it is easy to fall into the trap of overestimating the reputational damage that may follow from your employee’s conduct outside of work, so remember at all times that any dismissal must be within the range of reasonable responses.

James Tamm is director of legal services at Ellis Whittam

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