Where a connection can be made between an employee’s conduct outside of work and their job or employer, then an employer may take action. An employer can’t take action just because they don’t like the employee’s behaviour outside of work. The behaviour must impact on their job or employer, or it is none of their employer’s business.
Before taking action in relation to employee conduct outside work an employer should ask whether there is a link between that conduct and the employee’s job, and whether the conduct has harmed the employee’s employment (including the employer’s reputation). Where there is such a link, an employer may consider dismissal for serious misconduct or other disciplinary action for misconduct.
Other things to consider when deciding whether the conduct is linked to the employee’s job are:
- Could the employer’s business be damaged?
- Is the conduct compatible with the job the employee does?
- Is there an impact on other employees?
- Are there other factors undermining the necessary trust and confidence between the parties?
Where the employer thinks that there is a link between the employee’s conduct outside of work and the employee’s job, then they need to go through a fair disciplinary process with the employee before coming to a decision.
Situations where the employer may reasonably consider that there is a link, include:
- the employee is charged with, or is convicted of, a criminal charge that may affect their ability to do their job or publicly damages the employer’s reputation
- the employee sexually harasses another employee outside the workplace
- the employee assaults a customer of the employer, while identifiable as an employee of the employer.
Bringing the employer into disrepute
When an employee’s conduct might reasonably be viewed by the employer as having a negative impact on the reputation of the employer’s business, then the employer may consider dismissal for serious misconduct. The employer does not need to prove that there is actual damage to the business – only the potential for damage – for example if the employer gets mentioned when the conduct is referred to in the media.
If the employer decides that there may be damage to the reputation of the workplace, they still must follow a fair process with the employee in relation to taking disciplinary action. The question for the employer is whether a decision to dismiss (or take other action) is one which a fair and reasonable employer could have taken in the circumstances.
If an organisation is sensitive to public opinion, and business interests may be hurt as a result of employee misconduct, it is important to make sure that employees know that certain standards must be met. Often public servants and more senior staff are held to a higher standard.
Employers should consider putting a clause in their employment agreements to make it clear to all employees that the employer may dismiss an employee if their conduct outside work brings the employer into disrepute or for other specified reasons.
Issues identified via social media
Activity on social networking sites (particularly outside of work hours) may be a cause for disciplinary action (including dismissal if it is serious or repeated). So that employees understand expectations, employers should have social media policies clearly setting out their expectations of behaviour both in and out of the workplace, covering for example:
- posts that are critical of the employer, manager or colleagues
- activity via social media that otherwise affects relationships in the workplace (for example, bullying or threatening other employees)
- activity on social media sites that is inconsistent with the values of the company
- posts which divulge commercially sensitive information
- posts which show that the employee is not doing what they said they were doing (eg the employee said they were sick and they are seen doing a recreational activity).