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.
In the age of social media, the scope for bringing an employer into disrepute through ill-advised postings and commenting is even greater. Many employers are even blocking employees’ use of social media, such as Facebook, Twitter, YouTube, myspace, Google Plus, Instagram, and so on, on work computers and laptops. But what about things posted on social media during an employee’s private time?
In the case of Preece v JD Wetherspoons plc (2010), Miss Preece was a manager at a Wetherspoons pub and was subjected to abuse at work by two customers. She also received abusive telephone calls from one of the customer’s daughters. Whilst at work, Miss Preece posted derogatory comments about a customer on Facebook but she thought only around 50 of her 600 ‘friends’ could see them. However, the customer’s daughter saw the comments and complained to Wetherspoons. Miss Preece was eventually dismissed following disciplinary proceedings on the basis that her actions had lowered its reputation, breached its internet policy and breached the duty of trust and confidence.
The Tribunal found that the decision to dismiss her fell within the range of reasonable responses open to Wetherspoons and her dismissal was therefore fair, and justified.
In Benning v British Airways (2010), the claimant posted derogatory footage and comments on YouTube about a British Airways (BA) colleague. The Tribunal found that BA’s decision to dismiss him was fair.
As an employer, what should I do if I’m concerned about an employee’s conduct?
If you need to deal with a potential incident of an employee bringing the company into disrepute, you should fully investigate the alleged conduct, taking into consideration the role of the employee before starting disciplinary proceedings.
You must be careful not to instigate disciplinary proceedings based solely on personal disapproval of the employee’s conduct in their private life, otherwise you can expose yourself or your company to a claim of discrimination and/or unfair dismissal.
What else should an employer consider in these circumstances?
Employers need to ensure they follow any contractual disciplinary provisions, and comply with their formal disciplinary and grievance policies and procedures. If they don’t, they can open themselves up to a claim for unfair dismissal or discrimination, and/or a claim of breach of contract.
Employers should also note the minimum standards set out in the Acas Code of Practice on Disciplinary and Grievances.