Can You Discipline Employees for Their Conduct Outside of Work?
A question that commonly arises is whether employers can take disciplinary action based on an employee's conduct outside of working hours.
The short answer is that they can, provided the conduct outside of work has a bearing on the employment relationship.
Cases involving violence, sexual conduct or dishonesty are most likely to affect the employment relationship, either because of the work the employee does (for example if they work in a role which requires a certain level of responsibility or trust) or their employer's reputational concerns.
There is, however, no hard and fast rule that an employee who is being investigated, charged or convicted of a criminal offence must be dismissed. The consideration here is whether their suitability to do their job has been called into question, and whether irreparable damage has been caused to their relationship with their employer, colleagues and customers.
Conduct outside of work is of course not limited to criminal behaviour. We have increasingly seen disciplinary action being taken for employees' inappropriate use of social media outside of work. These cases will generally turn on their own facts. However, any disciplinary action taken in response to inappropriate social media use must fall within the 'range of reasonable responses' open to a reasonable employer to be lawful.
Best Practice reminders
- Off-duty conduct which has no bearing on employment is unlikely to justify disciplinary action.
- Equally, however, where a police investigation is underway into an employee's conduct, an employer need not await the outcome of the prosecution before taking action that is fair and reasonable in the circumstances.
- As with conduct at work, any disciplinary action taken in response to conduct outside of the workplace must fall within the band of reasonable responses open to a reasonable employer.
- Employers' expectations of their employees' use of social media and conduct outside of work should be set out in properly drafted social media and disciplinary policies so individuals are clear about what is and is not acceptable.
For more information, please contact Eleanor Boyd, in our Employment Law team, on 0207 665 0940, or complete the below form.