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When does misconduct outside work constitute grounds for dismissal?

BY Gerry O'Hare
Employment Law & HR
BG Purple

This article has been updated from an older version, first published in Feb 2016, to reflect current current advice and best practice...

The key factor for consideration here is whether the Conduct outside of work has a bearing on the employment relationship? Be that a considered breach of company policy, an impact on the employment trust and confidence relationship, damage to the reputation of the employer and/or a breach of the employee’s responsibilities. 

An interesting employment related side issue emerged from Sunderland Football Club’s decision to dismiss Adam Johnson, which came swiftly after he entered a guilty plea admitting sexual activity with a minor. 

Dismissal for conduct outside of work is nothing new.  It is a balancing act of the employee’s right to privacy and the employer’s right to protect its reputation.  Sunderland FC’s need to protect its reputation in this case overpowered Johnson’s right to a private life making this a relatively simple matter.

However, the nature of the club’s reputation means that it cannot wholly be considered a ‘normal employer’.  Clearly balancing fairness is more difficult if your employee and their actions are likely to be spread luridly on the front page of every national tabloid. 

But what about other employers? It is useful to note Acas’ guidance on the effect criminal activity can have on the employment relationship. Their guidance 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? We would recommend an employer should think about:

  • Whether the employee is able to carry out their work after the misconduct;
  • The relevancy of the conduct to the workplace; the risk to their reputation;
  • Possible collapse of the relationship the employee has with their colleagues and clients; and
  • Any steps they could take to allow the employee to remain in their employment without jeopardising their business.

Conduct that results in a custodial sentence can potentially “frustrate” an employment contract, bringing it to an end automatically.  Frustration means that the requirements of the contract cannot be fulfilled.  An employee offers work in return for a wage; if the employee cannot attend work, they cannot fulfil the terms of their contract.  The possibility of frustration generally applies to longer sentences so cannot always be relied on for shorter custodial sentences. This is a tricky area of the law and we would advise contacting your Legal Manager for assistance if you are dealing with this sort of issue.

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