Dismissal for gross misconduct in the workplace or during working time is well documented. But what if the alleged misconduct takes place outside working hours, in the individual’s private time? How should an employer respond? Will a dismissal be fair? We examine the issues.

Examples of misconduct that could lead to dismissal include the following.

  • Membership of an extreme political party.

  • Inappropriate use of social media, including rants about the employing organisation and compromising blogs and pictures.

  • Involvement in football hooliganism.

  • The employee is charged with, or convicted of, a criminal offence, particularly those of a sexual nature.

What does the Acas code of practice say?

The Acas Code of Practice on Disciplinary and Grievance Procedures should be followed by employers in these circumstances. Paragraph 31 of the Code states:

If an employee is charged with, or convicted of, a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.

So, what practical steps can an employer take in these circumstances?

It is established in case law that the key issue for employers to consider is whether or not:

  • the employee's misconduct goes to the employment relationship, bringing the employer’s reputation into disrepute; or

  • affects the employee’s ability to do their job.

An employee can be dismissed for misconduct outside the workplace but this cannot happen immediately. The employer must still follow a fair and reasonable procedure in line with the Acas Code, including a thorough investigation of the facts, and hold a disciplinary hearing. In this respect the employer should consider the following points:

  • whether the employee can carry out their work after the misconduct

  • the relevancy of the conduct to the workplace and the risk to the organisation’s reputation

  • the possible collapse of the relationship the employee has with their colleagues and clients

  • any steps it could take to allow the employee to remain in its employment without jeopardising its business.

The employee should be informed of the allegations against them before the hearing and be given reasonable time to respond to them. At the disciplinary hearing the employee has the right of accompaniment and the employer should allow them the opportunity to answer the charges and put forward any pleas in mitigation. In accordance with the Acas Code, there should be a right of appeal.

Criminal charges or convictions

As already indicated, an employee should not be dismissed or otherwise disciplined solely because they have been charged with, or convicted of, a criminal offence. The Acas Guide on Discipline and Grievances at Work, which supplements the Code of Practice, suggests that the question to be asked in such cases is whether the employee’s conduct or conviction merits action because of its employment implications.

The Acas Guide goes on to say that where it is thought the conduct may warrant disciplinary action the following should be borne in mind.

  • The employer should investigate the facts as far as possible, come to a view about them and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure.

  • Where the conduct requires prompt attention, the employer need not await the outcome of the criminal prosecution before taking fair and reasonable action.

  • Where the police are called in they should not be asked to conduct any investigation on behalf of the employer, nor should they be present at any meeting or disciplinary meeting.

In some cases the nature of the alleged offence may not justify disciplinary action — for example, off-duty conduct which has no bearing on employment — but the employee may not be available for work because they are in custody or on remand. In these cases, employers should decide whether, in the light of the needs of the organisation, the employee’s job can be held open or whether alternative work is appropriate and available.

Is the contract frustrated?

It is sometimes asserted that conduct that results in a custodial sentence can potentially “frustrate” an employment contract, bringing it to an end automatically.  The requirements of the contract cannot be fulfilled.  There is no need, therefore, for disciplinary action. The employee is simply informed that their contract of employment is terminated by the effect of the doctrine of frustration.

This is a dangerous approach. Frustration is only usually accepted by the courts where the employee receives a long custodial sentence. Case law has shown that short custodial sentences do not satisfy the doctrine of frustration.

Summary

There are several actions that any employer could now take to avoid future problems.

  • Ensure discipline and grievance procedures comply with the Acas Code.

  • In the staff handbook, provide examples of behaviour or offences that will constitute misconduct or gross misconduct or bringing the business into disrepute.

  • Emphasise the higher standards expected and required of senior staff and those employees dealing with the public.

  • In the relevant policies (email and internet policy), prohibit staff from identifying your business/ organisation in a personal blog. Technology and modern work practices have blurred any clear distinction between “work” and “private”.

  • Specify in these policies that maintaining a blog could amount to gross misconduct, justifying dismissal — for example, if it upsets colleagues, customers or other third parties.

Last reviewed 10 April 2019