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Can You Discipline School Employees for Conduct Outside of Work?

on Wednesday, 06 December 2017.

England cricketer Ben Stokes' conduct outside a Bristol nightclub has been a national talking point.

He was left out of the fourth one-day international against the West Indies and the Ashes tour, following his arrest on suspicion of causing actual bodily harm. 

You may be looking for parallels with the conduct of your own staff and question - can we take disciplinary action based on a member of staff's conduct outside of work and outside of working hours?

The short answer is that you may discipline for conduct outside of work, provided that the conduct has an impact on the employment relationship.

Cases involving child protection allegations, violence, sexual conduct or dishonesty are most likely to affect the employment relationship of a staff member within a school, irrespective of when or where the allegations arise. The overriding objective to safeguard children is the primary consideration.

There is no hard and fast rule that a staff member who is being investigated for, charged with or even convicted of a criminal offence must be dismissed. You need sound judgement as to whether suitability to perform a role has been jeopardised and whether irreparable damage has been caused to their relationship with the school, colleagues and/or the wider school community. The LADO may have valuable insight into the impact that some types of conduct may have on the ability to work in a role at the school.

Conduct outside of work is of course not limited to criminal behaviour. Regrettably, inappropriate conduct and the inappropriate use of social media outside of work continue to lead to disciplinary action. Questions of responsibility, professionalism, reputation, bringing the school into disrepute, damaging trust and confidence are all very live issues for schools to consider and manage as they conduct investigations in accordance with their procedures.

4 Key Points to Note for Schools

  • Off-duty conduct which has no bearing on employment is unlikely to justify disciplinary action.

  • Where a police investigation is underway into a member of staff's conduct, you should always seek the views of the police before taking any action so as to not jeopardise the investigation. However, you 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 relation to conduct outside of work must fall within the band of reasonable responses open to a reasonable employer.

  • Expectations of staff members' use of social media and conduct outside of work should be set out in a professionally drafted Code of Conduct, Social Media and Disciplinary rules and procedures.

What Can You Do Now? 

All of your staff should be properly inducted and trained on:

  • KCSIE part one and Annex A (if appropriate)

  • safeguarding policy

  • Code of Conduct

  • whistleblowing procedure

  • social media policy

  • disciplinary rules and procedures as a minimum

Staff should receive ongoing training to support a safer culture, embed good practice and seek to avoid breaches of the rules. By training staff appropriately and requiring them to confirm they have received that training, not only may this reduce the likelihood of questionable conduct, it will also put you in a stronger position if it has to defend a claim for unfair dismissal.

Please contact Simon Bevan, in our Employment Law team, on 0117 314 5238 for further information.

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