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ARTICLE ORIGINALLY PUBLISHED April 2022

Bad Behaviour

Bad Behaviour Outside Work

In this feature I want to give reassure to employers that they can take disciplinary actions against employees for their behaviour outside of work and working hours.

There have been numerous Employment Tribunal cases which have upheld Employers decisions to dismiss employees for incidents outside of work.

Of course you need to follow a reasonable investigative and disciplinary process and reach a “reasonable decision” but let’s look at what you can do rather than what you can’t do.

Conduct Outside of Work

This case law shows that it is possible for an employer to dismiss fairly an employee for conduct outside of work. The key issue for employers to consider is whether or not the employee’s misconduct goes to the core employment relationship, or affects their ability to do their job. The following examples will help make this clearer.

An employee who is charged with assault or selling drugs clearly potentially impacts on the reputation of your salon and you can’t just ignore it happening. It would be perfectly reasonable to challenge the employee and investigate the circumstances before deciding if there was a disciplinary issue. An employee fined for not paying their TV license is probably an entirely different kettle of fish.

Similarly, if you discovered your manager had been charged and convicted of a serious fraud naturally it impacts on your ability to trust them in charge of your till and stock. It would be totally unrealistic to consider that because the offences took place outside of work you had to ignore them. On the other hand a Therapist getting 3 points on their driving licence for speeding doesn’t really impact on their ability to do the job or impact on the business. Even a short prison sentence wouldn’t automatically result in dismissal, it really is judge each case on its merits.

If an incident occurred at a work related social event e.g a product launch or Christmas party then this is clearly associated with work and inappropriate behaviour could reasonably result in disciplinary sanctions.

Finally an employee who verbally and physically abuses a colleague or their employer on a night out can’t just be ignored. The investigation would consider the impact on the working relationship with the employer and/or work colleagues.

Social Media Issues

These are of particular concern and relevance and cases have kept Employment Tribunals busy over recent years. An employee making threatening or obscene comments on social media about the salon or its clients would be liable to disciplinary action and dismissal. In a case where none of the comments actually named the salon it would be far less clear. But it still wouldn’t mean that you must ignore the actions totally, it might just result in a lesser sanction eg a written warning.

Let’s look at some actual cases.

An employee sent an email from their private PC to a customer. The customer complained to the business owner about the content of the email and the employee was subsequently dismissed and lost their appeal at tribunal. The Tribunal’s view was that the misconduct clearly damaged the employer’s reputation as evidenced by the customer’s complaint.
A barmaid who made critical comments on facebook about a customer who had made abusive comments against her. She was considered to have been fairly dismissed. The Brewery had a written policy regarding social media use. This is a learning point, you should have a Social Networking Policy so your staff are in no doubt what actions are and aren’t acceptable.
On the other hand an employee who was dismissed for commenting on facebook “I think I work in a nursery and I do not mean working with plants.” won their Tribunal claim for unfair dismissal. The employer might not have been pleased, but the form of words weren’t considered to warrant instant dismissal.
What about making derogatory comments about employer on Facebook which only friends could see? The employee would have no control over who could see the comments – they could be forward on. Often employees make these comments in complete ignorance of the law and the implications for their employment. It is easy to see how sometimes they might be given the benefit of the doubt but this reaffirms why you remove any doubt by having a written policy.
In a recent case a client dismissed an employee who put on her face book page, “shit day at work my employer is an arse! The employee argued vainly that it was a private comment to her 230 friends on facebook including all the other employees at the salon. She was suspended and dismissed and no appeal was received.

Clearly employees don’t have blanket protection from dismissal for actions outside of work .Like all disciplinary situations you need to investigate incidents fully. The subtle difference in these cases is being absolutely clear why the incidents outside of work are relevant to work and impact on the employee/employer relationship.

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