A great deal of confusion exists about an employer’s right to control the behaviour of its employees when they are away from the workplace. Much of this springs from a misinterpretation of the Human Rights Act, which does indeed give citizens the right to freedom of expression. However, this Act, like much legislation, balances rights with responsibilities, says Bob Patchett. In reality, therefore, employees are free to enjoy life and to express themselves, but to a degree that does not adversely affect other bodies such as their employer.
The right to free expression means, for example, that an employee is entitled to join or indeed organise a demonstration in the town centre in support of a political party or an interest group. However, the employee must not suggest an association by his or her employer with the demonstration unless clear permission has been given to do so. And in the workplace the employee’s involvement with the supported organisation must not be given great prominence.
There would be little harm in the employee wearing a discreet lapel badge or brooch, but a political message emblazoned across a t-shirt would be unacceptable, particularly if the employee were to have contact with customers. Also the employee could legitimately be banned from handing out political propaganda.
Employers probably are more likely to have problems with employees who misbehave somewhere other than their normal place of work and therefore believe that their employer has no right to control or discipline them. The problem lies in an understanding of what constitutes the employer’s area of control, which is much wider than many employees believe. In short, employees are required to behave and conduct themselves properly in any place and at any time that may be associated formally with the employer’s operations.
High standards of behaviour should be maintained by employees visiting or working on client’s premises. Indeed rules may specify, for example, stricter standards of dress. Residential training courses conducted away from the employer’s premises can lead to bad behaviour, particularly if no senior executive is present. The danger time is the evening when delegates are relaxed and congregate at the bar. And an employee who is driving a company vehicle on the employer’s business, even if outside normal working hours, is required to conduct him or herself properly. Regardless of whether traffic authorities may be taking action against the driver for some infringement of traffic or transport regulations, the employer is entitled to discipline an employee for failing to take proper care of the vehicle, for being involved in an accident or for bringing the company’s name into disrepute by an incident of bad road behaviour.
Social events can be a problem for the employer because, although they are probably viewed by all parties as a medium for encouraging and maintaining good employee relations, employees are quite likely to see them as occasions for putting aside workplace standards of behaviour. This certainly is not the case and the employer is responsible for ensuring that high standards are maintained.
These social occasions would include, for example, the firm’s Christmas party at a local restaurant or club, the angling club’s annual prize giving in the function room of a pub, and any event organised by the employer’s social club. Although employees can be expected to behave in these situations in a more relaxed way than at work, nevertheless they need to conduct themselves decently and responsibly. All forms of sexual and racial harassment should be banned and care should be taken for the safety and wellbeing of junior employees.
In view of the likelihood that many employees are not aware of these constraints, the employer should enlighten them. Examples of what constitutes “at work” should be set out in either the employee handbook or posted on notice boards, and employees should be told what behaviour is expected of them and what is likely to happen to them if they behave improperly.
The maintenance of proper behaviour at social events may be tackled in two ways. First, a set of rules should be prepared and given to everybody who organises social activities. This might include the secretary of every social group and the organiser of any ad hoc event. Second, an individual, ideally of senior status, should be formally nominated to be responsible for behaviour at every event and his or her name registered with, say, the company secretary. That person should be required to remain sober and to ensure good behaviour throughout the event including, if necessary, seeing that everyone who is leaving by car is fit to do so. This is an unpleasant job that may well result in the nominated person being branded as a kill-joy, but the alternative is to have the organisation taken to court for permitting unlawful harassment or worse.
If employees behave badly in an arena that is truly outside work, for example, by smashing the furniture in a pub, the employer may take action only if the incident can be expected to cause significant damage to the employer’s good name. In that example, action might be taken only if the guilty person were a well-known senior executive, or if a large group of employees did the damage to a pub close to the employer’s premises.
Outside work incidents and the police
Police involvement in an outside work incident should not interfere greatly with action taken by the employer. If the employer feels that disciplinary action should be taken against an employee because of some incident, the normal process of investigation should be carried out, followed if necessary by disciplinary action.
The police are unlikely to provide evidence or witnesses, nor should their involvement influence the employer’s decisions. Even if the police decide not to prosecute, the employer may feel after investigation and interview that a sanction is called for. The police would need to satisfy a court of the employee’s criminal guilt “beyond all reasonable doubt”, whereas the employer makes a judgment on the basis of “the balance of probability”, which requires a much lower degree of proof.
If the employee is held in custody or even sentenced to a term of imprisonment, this in itself is not grounds for dismissal. The employer should first consider whether the offence impacts on work and apply the disciplinary process, albeit by correspondence. Second, the employer should estimate the probable length of absence, taking into account early parole, and consider whether someone absent through sickness for that length of time would be dismissed. If not, the job should be kept open. The court takes care of punishment but expects the employer to help with rehabilitation.
Finally, the employer is entitled to take action if an incident that occurs completely outside the workplace nevertheless impacts on work, for example, if the cashier embezzles golf club funds, or two employees fight. In the former case, the employer would be justified not in dismissing the cashier, but moving him or her to a job where embezzlement is not possible. In the latter case both employees should be spoken to, warned that their enmity must not affect work and, if necessary one or both should be moved to another work station.
If these issues are explained to employees, the chance of them occurring is likely to be reduced greatly.
Last reviewed 21 May 2015