What can an employer do about misconduct outside of the workplace?
Published 17 May 2021
Dealing with misconduct in the workplace can be problematic - but it can be even more challenging when it happens outside of it.
The dilemma can often be: How much control does an employer actually have in how an employee acts outside of work?
An employee can be fairly dismissed for an act of gross misconduct committed while not in work.
Such a decision can be found to be fair. Especially, if the actions of the individual result in bad publicity for the employer, raises legitimate concerns regarding their integrity or prevents them from performing their duties/responsibilities to an employer’s satisfaction.
In such a case the allegation will obviously be extremely serious, but the reaction to it should not be a knee-jerk one resulting in instant dismissal.
An employer must still follow a fair and reasonable disciplinary procedure, which is in line with the ACAS Code of Practice (1)
Getting it wrong can prove costly as highlighted recently in a case involving Derby County Football Club.
The club was ordered to pay £2.3m to former team captain Richard Keogh who was unfairly dismissed after being injured in a car crash following a night out. (2)
Mr Keogh was a passenger in the vehicle. He sustained a serious knee injury as a result of the crash, and was later sacked by the club.
The League Appeals Committee found that Mr Keogh had been unfairly dismissed. It said in a statement: The PRDC [Player Related Dispute Commission] held that Mr Keogh had not committed gross misconduct, that he had not brought the Club into serious disrepute, and that he had been wrongfully dismissed by the Club (3)
Team-mates Tom Lawrence and Mason Bennett were both in the vehicle. The pair later pleaded guilty to drink-driving and failing to stop at the scene of an accident (4)
While Mr Keogh was dismissed, Lawrence and Bennett are reported to have been fined six weeks' wages by Derby County - the maximum their contracts allowed. They were also reportedly ordered to serve 80 hours of community service and rehabilitation (5)
The case was not dealt with by an employment tribunal. However, it serves as a timely reminder of the need to be careful, possibly more careful than usual, when dealing with alleged misconduct outside of the workplace.
In such instances there are many things to consider, such as:
- How does the allegation impact on the individual’s employment?
- What is the significance of the incident given the employee’s role or seniority?
- Was it an aberration, a one-off and out of character for the employee?
- Is the organisation culpable in what occurred?
- How serious is the potential impact for the business?
- Is there any evidence of actual or potential damage to the reputation of the organisation?
Every case should be considered on its own particular circumstances. It should be investigated thoroughly and fairly.
If after investigating the matter and establishing the facts, it is decided that disciplinary action must be taken, a robust procedure should be followed
In cases where the actions of an employee outside of work lead to a police investigation, the disciplinary process does not have to be put on hold. It can run parallel to a criminal investigation, especially in cases involving theft or fraud.
Even in cases where a worker faces criminal charges or is convicted, it needs to be considered whether the employee’s conduct or conviction merits action because of its employment implications.
Provisions within an employer’s disciplinary policy should cover to out-of-work conduct. However, when applying the policy, it is essential to act consistently and assess each case on its own facts.
(1) ACAS Code of Practice [Internet] www.castleassociates.org.uk [Cited 17/05/21] https://castleassociates.org.uk/employment-law-a-z/acas-code-of-practice
(2) Richard Keogh was unfairly dismissed after being injured in a car crash [Internet] www.theguardian.com [Cited 17/05/21] https://www.theguardian.com/football/2021/may/11/richard-keogh-awarded-more-than-2m-in-breach-of-contract-case-against-derby
(3) The League Appeals Committee found that Mr Keogh had been unfairly dismissed. [Internet] www.efl.com [Cited 17/05/21] https://www.efl.com/news/2021/may/efl-statement-richard-keogh/
(4) Tom Lawrence and Mason Bennett plead guilty to drink-driving and failing to stop at the scene of an accident [Internet] www.stokesentinel.co.uk [Cited 17/05/21] https://www.stokesentinel.co.uk/sport/football/football-news/stoke-city-derby-players-convicted-3430813
(5) Mr Keogh was dismissed, Lawrence and Bennett are reported to have been fined six weeks' wages by Derby County [Internet] www.bbc.co.uk [Cited 17/05/21] https://www.bbc.co.uk/sport/football/49941786
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