Employment News

News added on 04.11.2019

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Misconduct

How should you handle misconduct outside work?

Following a disciplinary hearing, Derby County FC has fined two of its players the equivalent of six weeks' wages after they were charged with drink-driving following a car crash. What is the legal position when employees misbehave outside the workplace whilst they’re off duty?

Where an employee commits misconduct outside work, that’s not necessarily a reason for taking disciplinary action, even if the police are involved and they’re charged with or subsequently convicted of a criminal offence. According to the Acas Code of Practice on Disciplinary and Grievance Procedures, where a criminal offence is involved, “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”. The main consideration is whether the misconduct is such that it makes the employee unsuitable for the type of work they do for you. You’ll need to consider all the facts, including the nature of the misconduct, the nature of the work they undertake (and the extent to which it involves contact with other employees or customers/clients) and their seniority and status.

Criminal misconduct involving violence, theft, dishonesty or sexual conduct are the most likely to affect the employment relationship (and therefore justify dismissal), either because of: (1) the particular nature of the employee’s work, e.g. their job involves a high degree of honesty and integrity (theft and dishonesty offences) or they’re in a position of trust over children or vulnerable adults (violence and sexual offences); or (2) damage to your business reputation, e.g. the misconduct is committed by a senior employee working in a high profile role or there’s negative media publicity surrounding the case with your business being named. Conversely, off-duty misconduct which has no bearing on the employment relationship is unlikely to justify disciplinary action.

Where you do decide to press ahead with disciplinary action, you’ll still need to carry out an investigation to consider whether the employee’s misconduct is sufficiently serious to warrant instituting your disciplinary procedure and, if so, you must then hold a formal disciplinary hearing, just as you would do if the misconduct had happened at work.

Where the police are involved, they must not be asked to conduct any investigation on your behalf, nor should they be present at any investigatory meeting or disciplinary hearing, but you don’t necessarily need to await the outcome of any criminal proceedings before taking fair disciplinary action against the employee. As a criminal case can take months to come to court, it might be impractical for you to wait before holding a disciplinary hearing, particularly if you’re a small business and they’ve been suspended on full pay in the meantime. In addition, the Acas Code requires you to hold a disciplinary hearing “without unreasonable delay”. So, you should balance your need to conclude the disciplinary process against possible prejudice to the employee. Just be mindful though to not interfere with any ongoing police investigation. In addition, if, because of pending criminal charges, the employee refuses to co-operate with your investigation, don’t let this deter you from taking disciplinary action; in this scenario, advise them in writing that, unless they provide further information at the hearing, a disciplinary decision will be taken on the basis of the evidence that you do have available and this could result in their dismissal.

In Derby County’s case, it has the contractual right to fine its players for misconduct. However, this is not a disciplinary sanction which appears in standard employment contracts. The normal disciplinary sanctions would be a written warning, final written warning or summary dismissal, depending on the seriousness of the misconduct, although some employment contracts do contain other potential sanctions such as demotion, a period of suspension without pay, loss of future pay increment or bonus or transfer to another department/job.

Misconduct outside work can only be dealt with as a disciplinary matter if it adversely affects the ongoing employment relationship. If the police are involved because a criminal offence is alleged to have been committed, you can generally still press ahead with your disciplinary proceedings.

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