BEHAVIOUR OUTSIDE OF WORK
The recent departure of the England Football Manager raises the issue of behaviour outside of work and what rights an employer has to take action. It is well established in law that providing there is a clear link between the behaviour and the employer or their role within the organisation, employees’ actions outside the workplace can amount to misconduct.
By way of example, behaviour outside of work that:-
- has bought, or has the potential, to bring the employer into disrepute;
- is linked to work - for example, unacceptable behaviour at a workplace party;
- has a detrimental impact on the workplace; or
- is incompatible with the role carried out by the employee.
Before commencing any disciplinary process, employers should identify the allegations that they will put to the employee, and set out clearly the reasons why such behaviour has an impact on the employment relationship.
According to the media, in a meeting set up by undercover journalists, the England Football Manager provisionally entered into a £400,000 deal to represent a Far East firm and be a keynote speaker. However, it is reported that the Manager stressed he would have to "run that by" his employers, the Football Association, first.
In our view, the above, on its own, would not amount to unacceptable behaviour, given that the manager was to seek approval from his employers.
However, what resulted in the England Football Manager leaving his position by mutual consent, bearing in mind his high profile England Football Manager role, was his comments as reported in the media:
- that it was "not a problem" to bypass rules on third-party player ownership and claimed he knew of agents who were "doing it all the time";
- making fun of the manner in which his predecessor spoke;
- criticising one of his predecessor’s assistants;
- making comments about the FA president; and
- claims that some past and present Premier League managers received illicit payments for transfers.
Whatever you thoughts on journalists setting out to entrap celebrities, politicians, or others in high profile roles, there would be no news story to report, if those involved had conducted themselves more appropriately, especially in a meeting with people whom they had presumably not met before!
Whilst your employees are unlikely to be ‘entrapped’ by journalists, your employees could still conduct themselves inappropriately outside of work, in a manner that causes you concern.
Behaviour or conduct outside of work, which has no bearing on employment, is unlikely to justify disciplinary action. However, it may be fair to dismiss an employee for conduct outside the workplace if it affects the employer, or could be thought to affect the employee, when he/she is doing his/her work.
As an example, in one case, an employee was found to be fairly dismissed for bringing the Post Office into disrepute. He had been convicted of hooliganism and the employer could demonstrate that the employee’s actions damaged its reputation due to the widespread reporting of the hooliganism in national and international newspapers.
Contrast this with a case where an employee had misbehaved at a work-related event. Whilst it was an isolated incident of violent behaviour brought about by drunkenness, it was at an event where the employer had provided a free bar. The dismissal in this case was held to be unfair.
It is important that employers do not over react and have a knee jerk reaction when dealing with such an issue. Consequently, when deciding what disciplinary action, if any, to take, employers should consider:
- whether the incident is a one-off;
- the seriousness of the incident;
- the effect on the business;
- the effect on the ability of the employee to do their job; and
- whether the organisation could take any responsibility for the circumstances surrounding it.
As with any disciplinary action, conduct outside of work must be thoroughly investigated and employers should follow a full disciplinary procedure. In cases involving the police it is normally advisable to conduct an internal investigation rather than relying on the police investigation.
It is always necessary for employers to act reasonably in such circumstances and have evidence to back up any allegation of reputational damage or potential damage to the business.
And finally – and you won’t be surprised by this - employers should obtain professional advice before dismissing an employee in these circumstances, and needs to be sure that the behaviour/conduct is sufficiently serious to justify summary dismissal.