Over the last 12 months, we have 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, such as: SNP MP Margaret Ferrier’s travel following a positive test; Rangers FC first team players breaking lockdown rules to attend a party and Sky News anchor Kay Burley being taken off-air for 6 months having breached rules on gatherings.
Despite the aforementioned breaches occurring away from the workplace, they have all had an impact on the individuals’ working lives. These occurrences once again raise the question – “When can employers take action for employees’ behaviour outside of work?”
An employee’s behaviour outside of work generally falls outside the scope of the employment relationship. There are, however, a variety of circumstances where behaviour outside of work can have an impact on the employment relationship. If out of work conduct impacts 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 private life on the one hand and an employer’s right to protect its business on the other.
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:
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. In Tribunal, employers will inevitably be challenged on elements of fairness and reasonableness. Whilst it is often attractive for employers 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.
This article was first published by People Management
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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