Employees and their conduct outside of work
Employers have a significant amount of control over their employees when they are at work – during their working hours and on the premises where they undertake their work.
However, it is difficult for an employer to control the actions of an employee outside of their employment. There is little reason why an employer would wish to do so in any event; however, there is the risk that an employee can bring their company into disrepute through their actions in their personal life. No business organisation is immune from such a risk.
What is meant by bringing the employer into disrepute?
Where the conduct of an employee outside of the workplace is associated with that employer, it could bring the employer into disrepute. However, employers should always ensure that they proceed with caution when considering whether conduct outside of work may amount to a disciplinary offence.
Employers often include clauses in their employees’ contracts of employment providing that the contract of employment may be terminated if an employee’s conduct outside of work brings the employer into disrepute.
What kind of conduct could bring a company into disrepute?
A common type of conduct which has been considered as bringing the company into disrepute is sexual conduct. For example, a professional footballer who was caught having an affair which was subsequently reported in the newspapers was deemed to have brought his club into disrepute as this occurred while abroad representing the club on a foreign tour. However, mere disapproval of an employee’s conduct outside of work will not be sufficient to successfully discipline or remove an employee on the basis of bringing the employer into disrepute.
In a 2003 case, the European Court of Human Rights found in favour of the employer where a probation officer was dismissed after he was alleged to have been involved in sado-masochistic sexual activities. He argued that his dismissal breached his privacy rights under the European Convention of Human Rights. However, the ECHR held that the interference with his Article 8 rights was justified given the nature of his work, and the fact he worked with sex offenders.
In a further example, a primary school teacher had posed for photographs which were featured on a website for glamour models. Her conduct was held to have brought her employer into disrepute considering her role within the school. The teacher was subject to disciplinary proceedings but was not fired. However, it was stated that she would have been fired if the website was pornographic.
What’s clear is that each case law will be treated on its own merits. The actual conduct by the employee must be taken into consideration alongside the specific role the employee is employed to do.
For more information on:
- Social Media
- As an employer, what should I do if I’m concerned about an employee’s conduct?
- What else should an employer consider in these circumstances?