Mythbuster – I Can’t Discipline Employees for their Actions Outside of Work

This myth is particularly prevalent—which is surprising, considering the amount of highly-publicised cases that have proven it to be false.

Time and time again, employees’ behaviour has ended in dismissal.

A couple of recent, high-profile examples include:

• The case of Wood v Durham County Council in September 2018. Wood was caught shoplifting outside of work. He was subsequently dismissed despite claiming his actions were influenced by PTSD and associated amnesia.
• An individual was dismissed after shouting alleged racist abuse at Raheem Sterling during a Premier League match in December 2018

But why does it matter? Isn’t what employees get up to in their own time their business?

Well- that depends entirely on the behaviour the employee is engaging in outside of work.

Could it be classed as misconduct or gross misconduct? Does it have a direct impact on their role?

There’s always some grey area in these cases, so here are some good benchmarks for you to use when trying to determine whether an employee’s behaviour is severe enough for punishment:

• Is their behaviour likely to bring the firm into disrepute?
• Have they revealed sensitive company information?
• Does their behaviour pose a significant risk to colleagues or individuals under their care?

For example, if a carer engaged in violent or abusive behaviour outside of work, their employer would have reasonable cause to suspect they’d be a potential risk to the individuals in their care.

In one case, an airline attendant posted inappropriate images of herself online whilst wearing her work uniform. She was promptly dismissed when the images surfaced as this brought the company into disrepute.

In all cases, employers should investigate and consider if the employee’s behaviour impacts the employment relationship. It should also be considered whether the employee had a history of the reported behaviour, or whether it is an isolated incident. Another factor is whether their behaviour was influenced by any factors at work.

One example of an employee dismissal gone wrong was when an employee was dismissed for attacking a police officer. However, the violence was an isolated incident and brought about by alcohol at a work-related party where the employer had provided free alcohol.

After being taken to tribunal it was found that the employer unfairly dismissed the employee.

So… how do you fairly judge an employee’s actions outside of work?

Well, as with any other disciplinary action, you should thoroughly investigate and follow procedure to the letter as outline in your staff handbook (or contract).

Carry out a dual-sided investigation, investigating the employee’s innocence as much as their guilt, rather than digging deeper into one side of the argument. This is for practical reasons, not just to maintain a fair investigation, as it could amount to bias and therefore be held against you in a tribunal scenario.

It’s also wise to avoid kneejerk reactions, as they are liable to land you in hot water further down the line.

You can pre-empt any embarrassing social media issues by prohibiting staff from identifying your business in pictures or posts. Outline their restrictions in your email, internet, or data protection policies.

Another pre-emptive measure you can take is ensuring your disciplinary and grievance procedures are compliant.

But ultimately, if you believe an employee is no longer fit to perform their role due to behaviour outside of work, or if they have put the reputation of your business on the line, then you may discipline them. Just make sure you follow your outlined processes, or it may come back to haunt you…