Many employees may assume that how they behave outside work has nothing to do with their employer. While they may be right, there are occasions when misconduct within one’s personal life may have repercussions for their employment, resulting in disciplinary action or even dismissal.

When can an employer take disciplinary action for employee misconduct?

The Employment Rights Act 1996 sets out five circumstances under which an employer can fairly dismiss an employee:

• misconduct
• capability
• redundancy
• statutory illegality (i.e. the employee has no legal right to work)
• some other substantial reason (SOSR).

Before an employer dismisses an employee for any of these reasons, they should follow a full and fair disciplinary and grievance procedure, particularly when the employee has over 2 years’ service.

This would be the case even in cases of gross misconduct, where the employer may be able to dismiss the employee without notice.

What amounts to misconduct and gross misconduct?

All sorts of things can amount to misconduct, such as persistent lateness or unauthorised absence from work.

A serious act, or an act with serious consequences, such as theft, fraud, violence, and gross negligence, is considered ‘gross misconduct’. It is conduct that completely undermines the relationship of trust and confidence between employer and employee.

Whether something amounts to gross misconduct will depend on the specific circumstances. Employers will need to consider whether the employee’s misconduct seriously affects the employment relationship, brings the employer’s reputation into disrepute, or impacts on the employee’s ability to do their job.

Issues occurring outside the workplace

Whether misconduct outside work provides an employer with sufficient reason to act will depend on the circumstances.

Considerations must include factors such as whether a breach of company policy took place, or whether the action caused a breakdown of trust or damage to the employer’s reputation.

The most common forms of misconduct outside work tend to involve inappropriate use of social media, a criminal conviction, or (more recently) a breach of Covid restrictions.

Use of social media

Normally, an employer cannot act against an employee for using social media in their own time, so long as their activities do not damage the employer’s reputation.

However, an employer may be able to take disciplinary action if the employee’s conduct on social media adversely affects the employment relationship, working environment, or the employer’s reputation.

Examples might include posting a rant about the employer, making unwarranted controversial or offensive statements seemingly in the name of their employer, or uploading compromising blogs, pictures, and videos.

Consideration will also need to be given to the nature of the social media platform. For example, someone who slips into a heated outburst in a private Facebook group may create less public damage to an organisation than someone who posts a scathing verbal attack on an open forum, like LinkedIn.

A criminal conviction

If an employee is charged with, or convicted of, a criminal offence, this is not normally in itself reason for disciplinary action.

The employer would need to consider the effect of the charge or conviction on the employee’s suitability and ability to work, the employment relationship, the impact on other employees and customers, and the business’ reputation.

Breaking Covid rules

Depending on the circumstances, it is possible for an employer to take disciplinary action against an employee for breaching Covid regulations. The employer would need to demonstrate that the employee’s behaviour had a genuine impact on the employment relationship – for example: if the employee appeared on social media in a branded work uniform, while committing a clear and serious breach of Covid restrictions.

What should an employer do?

As an employer, particularly where the employee has more than two years’ service you must react in a proportionate and measured manner and ensure you follow a fair and reasonable procedure in line with the ACAS Code. This will involve a thorough investigation of the facts, which may include holding a disciplinary hearing.

The employee should be informed of the allegations against them in advance, so that they have a reasonable opportunity to respond. At the disciplinary hearing, the employee has the right to have someone with them. There should also be a right of appeal.

Handling misconduct cases with caution

Misconduct outside the workplace is always a difficult aspect of employment to deal with fairly and confidently. As an employer, it’s also important to regularly review your code of conduct, social media policy, and disciplinary policy to ensure these are up to date, and that all employees are familiar with them.

If you have concerns that an employee has acted inappropriately outside the workplace, you may need to act swiftly. However, you should also seek professional advice before you do.

Likewise, if you think your behaviour may have amounted to misconduct, even though it was outside work, it may help your case to consult with a professional legal advisor.

At Springhouse Solicitors we are perfectly placed to provide you with clear and accurate advice on all aspects of employment law. For expert assistance with misconduct-related issues, get in touch with our team today.