Employers need to consider carefully what they would do if one of their employees is publicly identified as being involved in the kind of antisocial behaviour we saw this past weekend in London before and after the Euro2020 final. Poor behaviour outside of work does not necessarily mean losing your job but some employers may decide that the connection between work and the employee’s behaviour is too strong and that continued employment is untenable. Dismissal for something an employee does outside of work can be fair, but this all depends on the reason and the procedure used.
It’s best to avoid being precise when it comes to defining what kind of behaviour is unacceptable, especially when it comes to behaviour outside of work, because no policy could cover everything imaginable that would be unacceptable. However, employers would be best placed to cover it in their contracts to alert employees to the fact that their behaviour outside of work could be the subject of action in work.
The line between what is and isn’t seen as acceptable behaviour outside work can be a flexible one, which is dictated to by whether a dismissal would be seen as fair by an employment tribunal. Employers are more likely to bring outside behaviour into question when the employee’s actions bring their integrity in the workplace in doubt, for example, if a finance clerk was charged with stealing money. Others may look to act because the continued employment will affect the success of the business or brings it into disrepute. An employee letting their hair down is not likely to make the newspapers; serious anti-social behaviour very well might.
Having your employee plastered all over the front pages in a compromising position is not what any employer wants, however, instant dismissal as a reaction to press coverage will almost always be unfair, depending on how long the employee has been with you.
All fair dismissals for poor behaviour are built on a good investigation into what happened so this is the first step, and the findings will inform how you proceed. Although cutting all ties with the employee may appear to be the appropriate way forward, employment tribunals will approach the case in the same way as any another dismissal for poor conduct so they will be looking for reasonableness and fairness.
Social media policies have become a mainstay for businesses in the past few years. Employers appreciate that employees have a social media presence but should set out clearly what their expectations are in connection with work in a policy, for example, not highlighting where they work.
With so much information easily accessible online it’s easy to trace someone’s workplace, and the reputational fall out for a company can be catastrophic. As we are seeing with Savills, where an employee’s Twitter account was apparently linked to racist abuse sent to England players, there can be immense pressure for an employer to act immediately, however, it is important to balance managing the company’s reputation with the employee’s right to fair process when considering any action.