Misconduct outside work: case study 1

Elizabeth Stevens of Steeles (Law) LLP continues a series of articles on dealing with misconduct outside work with a case study that looks at a situation in which an employer is concerned about the potential impact that criminal charges against two of its employees, for misconduct outside work, could have on their suitability for their roles. 

Happy Days Nursing Homes employs Paula as an accounts assistant at its head office. The company regards her as a reliable employee and she has a good relationship with other staff.  One Monday morning, her manager, Susan, hears a rumour that, on the previous Saturday evening, Paula was arrested for being drunk and disorderly after shouting abuse at security staff outside a nightclub. She was kept in custody overnight before being charged and released on Sunday morning. Susan is concerned about the potential impact of Paula's conduct outside work on her ability to carry out her job, and in particular whether or not there is a risk of her behaving inappropriately towards colleagues or clients with whom she deals on the telephone.

What should Susan do?

Susan should be cautious about relying on rumours in the workplace and should take appropriate steps to establish what actually happened. She should investigate further to establish whether or not disciplinary action is appropriate and arrange a meeting with Paula to try to establish the facts. She should explain to Paula at the outset that the meeting does not constitute disciplinary action and that she wants to hear her version of events. This meeting should be held in private and Susan should keep a written record of what is said during it.

At the meeting, Paula immediately admits that the rumours are true. She was arrested and charged with disorderly conduct at the weekend. She is highly embarrassed about what happened and explains that she was out for the evening with a group of friends on a hen night. She admits that she was very drunk and she does not recall much of what happened, although she does remember one of the security staff being very rude about one of her friends, which provoked her behaviour. Nothing like this has ever happened to her before and she is not going to let it happen again. She was horrified when she realised that Susan had found out about it and does not want this to affect her future employment.

Could Happy Days Nursing Homes take further action against Paula?

As Paula is not employed in a care role and has no contact with vulnerable residents in Happy Days' care homes, there appears to be very little risk that her behaviour will have an impact on her ability to do her job, particularly in view of her employment history and good service record. If Happy Days Nursing Homes takes formal disciplinary action against Paula, particularly if it dismisses her, this is likely to be unreasonable in the circumstances. The company should take into account the fact that Paula has been honest with Susan and appears to be genuinely contrite about her actions.

Therefore, Susan should inform Paula that the company will be taking no further action against her on this occasion, and advise her to be aware that her behaviour outside work could have an impact on her employment.

Meanwhile, Jeff, the manager of one of the nursing homes, reads in the local paper that an employee, Kim, who is employed as a carer at the home, has been convicted of shoplifting at the magistrates' court. Both Kim's name and the name of the care home have been published in the newspaper. Jeff rings the head office for advice.

What advice should the head office give Jeff?

Happy Days' head office should advise Jeff to investigate further to establish the facts before deciding whether or not further action is necessary. As Kim has direct responsibility for vulnerable patients in her care, and access to their personal belongings, it would probably be appropriate in this case for the company to suspend her from her duties while Jeff carries out an investigation. Suspension should be on full pay and only for as long as is necessary to investigate properly. Alternatively, Kim could (with her agreement) be temporarily allocated to different duties involving no direct contact with residents, if any are available.

Jeff should arrange a meeting with Kim as soon as possible to try to establish the facts. As with the investigatory meeting that Susan held with Paula, Jeff should explain at the outset that the meeting does not constitute disciplinary action and that he wants to hear Kim's version of events. This meeting should be held in private and Jeff should keep a written record of what is said.

During the meeting, Kim does not deny that she was convicted of shoplifting but refuses to provide any details, claiming that it is private and none of Jeff's business as it all happened outside work. Jeff subsequently receives several telephone calls from concerned family members of some of the residents at the home, who want to know if Kim will be looking after their relatives, and threatening to move them elsewhere if she remains working there. One of the callers alleges that his elderly mother had some items go missing last year.

What should Jeff do next and can Happy Days Nursing Homes fairly dismiss Kim?

Jeff should investigate whether or not there have been reported incidents of residents' money or belongings going missing. However, the company should be cautious about pinning the blame on Kim for any incidents of this nature unless there is evidence to suggest that she might have been responsible.

Assuming that there is no suggestion that Kim has been stealing from residents, Happy Days Nursing Homes should decide whether or not to pursue disciplinary action against her on the ground of her criminal conviction for shoplifting.

While the conviction for shoplifting is for a relatively minor offence, her position as a carer of vulnerable adults provides her with the opportunity to take advantage of the easy access she has to their personal belongings. The company needs to consider the impact of the conviction on her suitability for continued employment and assess the risk of her repeating this type of misconduct in the workplace.

On these facts, it is likely that the risk that she may repeat the misconduct at work would give Happy Days Nursing Homes grounds for dismissing Kim, provided that it follows a fair procedure. In addition, the company would be entitled to take into account the fact that its reputation has been damaged as a result of being named in the newspaper report, and that the families of residents have also raised concerns. It is likely that, if the company continued to employ Kim, it would lose business as a result.

The company should write to Kim and invite her to a disciplinary hearing, explaining the reasons why disciplinary action is considered necessary and that dismissal might be a potential outcome. She should be informed of her right to be accompanied at the meeting, which should be held by a manager not involved in the initial investigation (ie not Jeff). The manager conducting the disciplinary hearing should give Kim the opportunity to state her case and respond to the allegations against her.

Following the meeting, the manager should consider the evidence and whether or not there is an alternative to dismissal. If the manager decides to terminate Kim's employment, the company should inform her of this in writing and of her right to appeal against her dismissal.

Kim's dismissal in these circumstances is likely to be fair by reason of her conduct. However, Happy Days Nursing Homes could arguably also rely on "some other substantial reason" (under s.98(1) of the Employment Rights Act 1996), as a fair reason for dismissal, due to the damage to its reputation caused by Kim's conviction and the likelihood that the company will lose business if it does not terminate her employment.

Next week's topic of the week article will be a second case study around dealing with misconduct outside work and will be published on 17 October.

Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.