If an incident of misconduct which warrants dismissal occurs at work then the relevant employee is clearly laying themselves  open to such a sanction. However, what is the case where the incident of misconduct occurs outside of work? One would initially think that this shouldn’t affect the employer – in fact it’s none of their business. However, this is not the case. Employers can discipline or dismiss employees for both criminal and non-criminal misconduct outside of the workplace, depending on the gravity of the incident and the effect it has upon the employer. This post will start by examining the factors which the employer has to have reference to in deciding what action to take when alerted of an allegation of misconduct outside of work. It will then move on to a consideration of when criminal and non-criminal incidents outside of work can warrant a dismissal fair or unfair.

When informed of an allegation of misconduct outside of the workplace (whether criminal or non-criminal) the employer must consider eight issues in deciding whether the allegation warrants dismissal:

  • The nature of the employment
  • The position held by the employee
  • The nature of the incident
  • The effect on the employer, on the employer’s customers, and on the employee’s fellow workers
  • The employee’s past record;
  • The employee’s proximity to members of the public
  • Whether the incident affects the employee’s ability to do their job; and
  • Whether the employer has lost trust in the employee

Generally, if the conduct in question has an adverse effect on the employer’s business then the dismissal may be fair. However, the employer must conduct a fair investigation of the matter, allowing it to come to a reasonable and genuine conclusion based on an appropriate and impartial investigation. The employer is allowed to take into account aggravating factors (such as a poor attendance record). Employers are generally afforded a wide discretion in deciding whether to dismiss employees – the “range of reasonable responses” test does tend to skew matters in the employer’s favour. It is good practice for employers to inform their employees of incidents which could constitute (gross) misconduct but employers are not expected to anticipate every eventuality which could warrant dismissal. However, employers should be careful not to hold flawed disciplinary procedures or make arbitrary decisions (for example, dismissing an employee simply because they have been remanded in custody overnight and are therefore late for work).

When an employee has committed a criminal act outside of their workplace then employers clearly have a vested interest in knowing of the incident and being able to act in their best interests. If an employee fails to inform their employer of their past criminal record then this may leave them open to be fairly dismissed. However, employers have to again follow a fair procedure in dismissing or disciplining the employee, irrespective of their beliefs on the matter at hand. The employee should be interviewed and the employee should be invited to explain their position at an investigation.

If the employee intends to plead guilty to the offence then the employer should make their decision with reference to the eight issues listed above. The employer can’t simply make up arbitrary reasons to justify dismissing the employee – for example the impact it may have on clients. If the employer is seeking to rely on such a ground for a dismissal then it must corroborate this fact by getting the views of, for example, these clients.

If the employee intends to plead not guilty to the offence they are accused of then the employer should normally, as good practice, suspend the employee. Whether the suspension is on full pay or not depends on the matters at hand and the nature of the employer – the employer should take into consideration the length of time before the hearing, the circumstances of their business, and the seriousness or otherwise of the offence. If there is a collective agreement or a disciplinary policy which specifies that the employee should be suspended instead of dismissed then this must be followed.

If the offence is not criminal in nature then the employer must have reference to the above factors to determine whether dismissal is reasonable in the circumstances. It will generally be more difficult for employers to justify the reasonableness of a dismissal in a non-criminal incident. However, this obviously depends on the nature of the act perpetrated. Having intercourse with a company executive’s wife clearly is an incident which warrants dismissal (Gray v C & P Pembroke Ltd). Moonlighting on the employee’s part often justifies dismissal if it has an adverse effect on the employer’s business. However, this adverse effect must not be trivial in nature. Activities which are incompatible with the dignity of the employee or causes the employee to be exhausted may also warrant dismissal.

The last point to make is that if an employee is dismissed because of (usually non-criminal) conduct outside of the workplace then they may be able to rely on their Article 8 rights.

If you want to read more about your rights relating to unfair dismissal have a look at the following:

  1. Employment law for employees
  2. Employment law for employers
  3. How to submit a claim for unfair dismissal
  4. Unfair dismissal explanation

Redmans Solicitors are London employment lawyers based in Richmond, London. They are no unfair dismissal no win no fee specialists and offer compromise agreement advice.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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