When an employee is off duty, what they choose to do in their personal time is generally considered their private affair. However, in an age where smartphones and social media create an unprecedented level of public visibility for all of us, it has become increasingly common for aspects of an employee’s private life to resurface in ways that could damage their employer’s public image and reputation.
Sarah Lim
Less than a year ago, a Tonkin + Taylor employee heckled Winston Peters during a media stand-up while wearing a lanyard with work identification. There was also a recent scandal surrounding former Deputy Police Commissioner Jevon McSkimming and former Police Commissioner Andrew Coster.
This evolving landscape has prompted many employers to consider a tricky question: at what point does an employee’s conduct outside of work give rise to workplace misconduct?
If an employee’s private business outside of work has brought their employer into disrepute and/or negatively affected their employer’s reputation, then the employee’s private affairs could be subject to a formal employment process. If the employee’s misconduct outside of work is so serious that it causes the employer to lose trust and confidence in maintaining an ongoing employment relationship with that employee, the result may even be termination of employment.
Checking a lanyard. Photo: Felicity Tai, pexels.com
The legal test for whether an employee has brought their employer into disrepute is an objective one. It’s not what the employer personally thinks about the employee’s actions or their effects on the employer’s reputation. Rather, what is relevant is how others perceive, or may perceive, the employer’s reputation as a result of the employee’s actions. The question employers must ask themselves is whether a neutral, fair-minded, and independent observer could consider that the employee’s relevant actions outside of work have brought, or pose a reasonable risk of bringing, the employer into disrepute.
Employers must also take care not to jump to conclusions, no matter how serious an employee’s conduct outside of work may appear. Before starting a formal process, it is important for the employer to first understand all relevant circumstances with an open mind. Even if the legal test for bringing the employer into disrepute is met, the employer must still comply with obligations under the Employment Relations Act 2000. These include adequately particularising concerns about reputational damage and providing the employee with a reasonable opportunity to respond.
Once the employer has gathered the necessary information, it should seek legal advice before commencing any formal process, as a matter of best practice.
EMA members can also access the organisation’s AdviceLine service, which provides up-to-date, practical guidance on employment and workplace issues. The service ensures employers have a reliable source of clarification when navigating unfamiliar or complex situations, helping to address potential issues early and reduce the risk of escalation.
Clocking off work. Photo: pexels.com
