As employers, we have written rules, regulations and expectations for our employees’ conduct when in the workplace, which an employee agrees to when signing their Contract of Employment (in conjunction with the Company Handbook, where applicable). Conduct that does not meet these standards can result in disciplinary action and can even be grounds for dismissal.
But what about misconduct outside of the workplace? Does an employer have any business bringing disciplinary or dismissal proceedings on their employees for their actions when away from work and during their personal time?
In the first of a 2-part blog series, today’s blog will be a Q&A on misconduct outside of the workplace that result in criminal offences being investigated by the police, and answering questions commonly asked by clients.
Q. My employee committed a criminal offence outside of work. Can I dismiss them?
A: The ACAS Code of Practice on Disciplinary and Grievance Procedures states that a charge or conviction against an employee that does not relate to work is not normally a reason for disciplinary action or dismissal.
Q. But I’m not happy or comfortable for them to stay. Is there nothing I can do?
A: You do have options. An employee’s conduct outside of the workplace doesn’t necessarily serve as grounds for dismissal unless you can show that the conduct will negatively affect the employment relationship going forward.
Q. How can I show this?
A: The kinds of criminal offences known to negatively affect an employment relationship are usually those involving violence, dishonesty, and sexual offences. If you are considering a dismissal based on misconduct relating to any of these categories, you must also ensure a dismissal will be fair in the eyes of a Tribunal, should it ever come to that.
For this, you’ll need to consider the type of work the employee does; whether their role requires trust and responsibility; whether their relationship with you, their colleagues and customers could be negatively affected; and whether your organisation’s integrity or reputation has, or potentially could, suffer damage as a result of their conduct.
Q. Ah, I’m particularly concerned about my company’s reputation. Can I pursue a dismissal on this basis?
A: If this is your main concern, you can also consider an SOSR dismissal. By law, there are five potentially fair reasons for dismissal of an employee – capability, conduct, redundancy, breach of statutory restriction, and some other substantial reason (SOSR). In past cases, where employees were found to be fairly dismissed on the basis of a SOSR, factors included:
● Third party pressure (such as a client not wanting to work with a particular employee);
● An employee’s refusal to accept new terms of employment;
● Personality clashes between employees;
● Conflicts of interest;
● Expiry of a fixed term Contract;
● Reputational risk (immediate or potential).
This presents an alternative to dismissal on the grounds of the conduct itself, but you will still need to follow a fair procedure and act reasonably, taking into account all circumstances, as you should with any form of dismissal.
Q. My employee is awaiting trial. Can I dismiss them before a verdict is reached?
A: Whilst there is no rule to say that you must wait for an outcome to a criminal trial, you will need to obtain sufficient material, through your own investigation, to justify a dismissal in advance.
Further factors to consider in deciding whether to proceed with an investigation, with a view to dismissing an employee prior to a court judgement, include:
● The nature of the employee’s role;
● The employee’s length of service;
● The employee’s disciplinary record;
● Any contractual obligations regarding the organisation’s rules and policies;
● The nature of the allegations being investigated by the police;
● The length of time expected for the trial to conclude, including their ability to attend the work setting e.g. if they have been remanded in custody until the end court hearing.
It is important to note the Court of Appeal recently emphasised that while many of these factors are relevant, should the dismissed employee take the employer to Tribunal for unfair dismissal in advance of an acquittal or conviction, the Tribunal will ultimately look at whether proceedings should have been delayed until the final court judgement was made.
Q. Maybe it would be safer to wait, then?
A: If you feel it would be more prudent to wait, do so in the knowledge that you will not be bound by the trial’s outcome. As we’ve all come to learn, acquittals can occur on technicalities (such as failures to follow proper procedure, for example). Even if there is insufficient evidence for a criminal conviction, evidence may turn up during the course of the trial that presents a breach of the employee’s duty, which can justify a dismissal after the trial. Examples of this are sometimes shown where politicians resign from their posts when it is found that they have acted irresponsibly or inappropriately, even if their conduct would not have resulted in criminal proceedings.
A disadvantage to waiting for the outcome of a criminal trial though, is the excessive time it typically takes for a case to receive a court date and the duration of the court proceedings. The employee would remain in your employment during this time, which could make for a costly and an awkward working situation.
Q. I’ve decided to go ahead with an investigation, but the employee is not cooperating. How can I handle this?
A: This can often be a problem as many employees in these situations may, on legal advice, choose to remain silent so as not to prejudice themselves. The information they give in a disciplinary investigation can potentially be required to be passed to the police to support a criminal case.
In this case, you may still dismiss the employee, but it must be on the grounds of evidence produced that indicates guilt (in the absence of any other explanation), or that the organisation’s reputation could face damage, justifying an SOSR dismissal as discussed previously.
Conclusion
Taking action against an employee for conduct that takes place in their personal time will always be a tricky area. Nonetheless, should the event arise, it is advisable to take a holistic and long-term view of the situation by considering the effect the charge or conviction will have on the employee’s suitability for the job, and their relationship with you as the employer, as well as their colleagues and customers. Then act accordingly, in line with your company policies and procedures and the ACAS Code of Practice.
Next Month…
In part 2 of this blog series, we will look at handling misconduct outside of the workplace when it comes to the newest of modern complications – social media use!