Managing misconduct that occurs within the workplace can be challenging. Procedural requirements must be met and any disciplinary action must be lawfully justified. When the misconduct occurs outside of work, things get even trickier. With the silly season soon upon us and people starting to wind down after a busy year, now is commonly the time when issues arising from bad or impaired judgment start to increase. The question many employers often ask is whether they can do anything to address an employee’s bad behaviour if it did not occur at work but in the employee’s personal life? The short answer is, like most things, it depends on the circumstances.
The starting point is that employees have the right to privacy and to be able to live their lives as they choose outside of work. However, when bad behaviour in an employee’s personal life can in some way be connected to their job or could impact their employer’s business or reputation, an employer is entitled to get involved and take reasonable action. If there is a lack of connection between the misconduct and the employer’s business and the employee has just done something an employer does not approve of, this is unlikely to justify disciplinary action.
Employers should ask the following when deciding whether they can do anything about misconduct occurring outside of work:
- Is the conduct incompatible with the job the employee does?
- Does the conduct impact other employees?
- Could the conduct impact on the employer’s trust and
confidence in the employee?
If after asking these questions an employer can determine there is a link between the employee’s behaviour and their employment, then an employer is entitled to commence an investigation or a disciplinary process. For example, an employee accused of harassing another employee outside of work hours would have a clear link to that employee’s employment as the conduct impacts another employee. Another example is an employee who, while driving their employer’s branded work vehicle outside of work hours, verbally abuses a member of the public during an instance of road rage. Social media and the digi-workforce have further blurred the line between work and employees’ personal lives. Employees should also be aware that venting frustrations or personal opinions online that may identify and reflect poorly on their employer may lead to disciplinary action.
Like with misconduct that occurs at work, it is important the disciplinary process is fair and follows any prescribed procedural requirements that are set out in either the employee’s employment agreement or employer’s policies. This would normally include providing the employee with full details of the allegations and all other evidence relied on in support. This could include witness statements, video footage, photographs, and any other documentation. Any information relied on by an employer to support the allegations should be provided. The employee should be advised of their right to seek independent advice and be provided an opportunity to respond to the allegations and evidence. Once the employer has fairly considered the employee’s response, which may include undertaking further enquiry or clarification of any issues in dispute, the employer is then
entitled to make a decision on whether the allegations have been substantiated and what the outcome should be. When it comes to decision making, the conduct of senior employees outside the workplace whose duties impact on reputation and integrity of the company may be more closely scrutinised.
Employers are wise to minimise the risk of ambiguity about what conduct outside of work might impact on employment, by setting out clearly what is expected of employees in employment documentation such as terms or employment, or codes or conduct. Employees should be put on notice of the potential consequences, including dismissal, should misconduct outside work brings or could likely bring the employer’s business into disrepute.
Ordinarily, in instances where an employee’s behaviour could be seen to damage the employer’s reputation, the potential for damage rather than actual proof of damage will be enough. Similarly, the underlying conduct as opposed to the effect of any significant media attention should be considered. For example, the fact of an employee having an accident in an employer branded vehicle after hours is clearly linked to the company, regardless of whether it was reported in the local paper or social media.
Employers must always ensure the process and outcome is fair and reasonable in the circumstances. The specialist employment law team at DTI Lawyers can assist businesses in relation to all employment matters, including advice on disciplinary processes and whether an employer can take action for misconduct occurring outside of work. For any further information on employment law queries, please contact the specialist employment team at DTI Lawyers.
Written by Jaime Lomas
