FEATURE: EMPLOYMENT LAW
Out of hours and out of line
When it comes to employee misconduct out of working hours a careful approach is required. Darryll Thomas, an employment law specialist at Solihull and Birmingham lawyers Williamson & Soden, explains why
where images of those involved were exposed by CCTV and youtube footage. Once the out-of-hours actions of an employee have become public
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through press and television or the Internet, an employer may have the right to take disciplinary action. Such a response would be justifiable if there were consequences for the
business, for example, damage to its reputation, operations or customer relationships. Though it should be remembered that employees have a right to privacy and they may believe that their actions outside the workplace are no business of the employer.
‘If there were to be a not guilty verdict, this does not mean that disciplinary action would be unfair’
Employment contracts will often provide for action to be taken against employees in relation to behaviour away from the workplace. Where an issue arises, a fair investigation needs to be held by the
employer and it can be appropriate for employers to suspend an individual on full pay for a reasonable period, while the enquiry is carried out. In most cases, it is not possible to await the outcome of a criminal prosecution, which, for a serious offence, can be a long drawn out affair.
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est Midland employers should be cautious when dealing with cases of unacceptable conduct by employees outside working hours. The issue was highlighted by the riots and looting in August that scarred Birmingham and other major cities,
A long period of suspension could be said to prejudice the outcome of the employer’s enquiry. Furthermore, even if there were to be a not guilty verdict, this does not mean that disciplinary action would be unfair. The burden of proof is much greater in a criminal case than a civil matter. The main question in determining whether disciplinary action is appropriate is whether the business, its reputation or premises have been damaged. If other employees refuse to work with the employee concerned, this can also be a major factor in justifying a decision to discipline or dismiss the worker concerned. However, caution is needed here because the action of another employee in refusing to work with the individual can itself be misconduct. In any event, the employer could be on dubious ground if dismissal
followed the incident without careful consideration. Apart from criminal behaviour of this nature outside work time, another
potentially challenging area is that of email and social networking activity. It is perfectly possible for an employee to send messages to others that are offensive or damaging to the business. There should be a company policy highlighting the fact that disciplinary action will follow if such activity is shown to have taken place. Inappropriate emails, posts or tweets are potentially grounds for a
charge of gross misconduct and an outcome of instant dismissal as long as the business really is damaged. Businesses should be firm in setting out compliance and disciplinary policies and enforcing them. Specialist legal advice can be valuable here. Disciplinary action can rebound on employers if workers are dismissed as
an instant reaction or if the incident is used as an excuse to fire an underperforming or difficult employee.
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