Staff misconduct outside of work - what can you do?

There have been numerous employment tribunal cases which have upheld employers' decisions to dismiss employees for staff misconduct outside of work and working hours. Of course you need to follow a realistic investigative and disciplinary process and reach a “reasonable decision” but let’s look at what you can do rather than what you can’t do. HR expert David Wright explores what powers employers have when staff misbehave outside of work...

What type of staff misconduct outside of work can result in dismissal?

The case law shows that it is possible for an employer to dismiss fairly an employee for conduct outside of work. The key issue for employers to consider is whether or not the employee’s misconduct goes to the core employment relationship, or affects their ability to do their job. The following examples will help make this clearer. An employee who is charged with assault or selling drugs clearly potentially impacts on the reputation of your salon and you can’t just ignore it happening. It would be perfectly reasonable to challenge the employee and investigate the circumstances before deciding if there was a disciplinary issue. An employee named in the local newspaper for not paying their TV license is probably an entirely different scenario.

How serious does the misconduct have to be?

There isn’t a list I’m afraid. It’s about being realistic and getting advice. For example, if you discovered your manager had been charged and convicted of a serious fraud naturally it impacts on your ability to trust them in charge of your till and stock. It would be totally unrealistic to consider that because the offences took place outside of work you had to ignore them. On the other hand, a stylist getting three points on their driving licence for speeding doesn’t really impact on their ability to do the job or impact on the business. So you look at the impact on the job and possibly the reputation to the business

How quickly can I take disciplinary action

In many cases you will be able to interview the employee and gets the facts almost immediately. But sometimes this will not be the case and you won’t have access to any information. Ideally you make your disciplinary decision before waiting for a case to get to Court which might take several months. But if you can’t get a picture of what happened and the employee is vehement they are innocent you might have to wait.

If an employee is given a prison sentence are they automatically dismissed?

Employees have been dismissed after receiving a prison sentence but it isn’t automatic. A short prison sentence wouldn’t automatically result in dismissal, each case must be judged on its merits. For example if a staff member is given a 21-day sentence for a driving offence , it probably doesn’t impact on the business and you would ask why can’t I give the employee  unpaid leave while they are unavailable. A five-year sentence is, of, course different.

What about incidents at works social events?

If an incident occurs at a work related social event, for example a product launch or Christmas party, then this is clearly associated with work and inappropriate behaviour could reasonably result in disciplinary sanctions. It is important the employer reminds staff of their expectations prior to such events and investigates exactly what has happened exactly as they would any other disciplinary incident

Can I take action over social media issues?

An employee making threatening or obscene comments on social media about the salon or its clients would be liable to disciplinary action and dismissal. In simple terms it comes down to whether the social media comment damage the employers reputation. Ideally the employer has a social networking policy so their staff are in no doubt of the rules Claiming the comments only went to “friends” is no defence, there is no control over where the comments could be forwarded to.