Misconduct outside work: checklist

Elizabeth Stevens of Steeles (Law) LLP concludes a series of articles on dealing with misconduct outside work with a checklist of factors for employers to take into account when considering whether or not to take action against an employee because of his or her misconduct outside work, and measures to help employers to ensure that the action they take is appropriate and reasonable. 

1. Remember that an employee's criminal conduct outside work will not automatically mean that his or her dismissal for that conduct will be fair. 

The Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) makes clear that, if an employee is charged with, or convicted of, a criminal offence, this is not normally, in itself, grounds for the employer to take disciplinary action.

The employer must be able to show a genuine connection between the employee's conduct outside work and his or her employment, before it takes disciplinary action. If the employer fails to demonstrate such a connection and fails to follow a fair procedure before dismissing the employee in relation to his or her conduct outside work, this is likely to result in a finding of unfair dismissal if the employee later challenges the dismissal.

2. Consider how relevant the alleged offence is to the employee's role.

Key considerations for employers deciding whether or not disciplinary action is an appropriate response to misconduct outside work will be the extent to which the misconduct in question impacts on the employee's ability to carry out his or her job and whether or not it has the potential to damage the employer's reputation.

The Acas code states that "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".

Whether or not it is appropriate to take disciplinary action will depend on the nature and seriousness of the alleged offence and the duties that the employee carries out. For example, if an employee is suspected of committing theft or fraud, it is more likely to be appropriate for the employer to take disciplinary action if the employee's role involves handling money, than if it does not. Generally, offences involving theft and/or violence are those for which disciplinary action is most likely to be deemed reasonable, but each case will depend on the individual circumstances.

3. Do not assume that you can dismiss an employee because he or she is in prison.

If an employee is in custody as a result of conduct that has no bearing on his or her job and is unable to attend work, in some circumstances it might be regarded by an employment tribunal as unreasonable for the employer not to have kept the job open during the period of imprisonment. Reasonableness will depend on the work that the employee carried out and the impact of his or her absence on the employer's business. A larger employer with access to greater resources is more likely to be able to cope with the absence of an employee in prison than an employer with a small workforce, which would face severe difficulties covering for the absence.

If the employee is likely to be in prison for many months or even years, this might give the employer grounds for terminating the employment, provided that it follows a fair procedure.

4. Consider whether or not there is a significant reputational risk if the employee is not dismissed.

An employer should not assume that, just because an employee has been arrested and charged with a criminal offence for conduct outside work, this will cause damage to its reputation. Even if the employee's conduct has been reported in the media, unless the employer has been identified in the reports, or the employee has significant contact with the public in his or her role, this does not necessarily mean that there will be a significant risk to the employer's reputation if it continues to employ the employee.

Reputational risk for the employer is more likely if the employee is employed in a position of trust, particularly if he or she is in a role with responsibility for the health and welfare of children or vulnerable adults.

5. Include references to misconduct outside work in the disciplinary policy.

Employers' disciplinary policies should include references to conduct outside work and make clear that misconduct during employees' own time could lead to the employer taking disciplinary action in appropriate circumstances. This will serve to remind employees that their conduct outside work can have an impact on their employment, particularly if they work in a role that involves a high degree of trust and responsibility.

6. Be consistent when dealing with misconduct outside work.

Employers should be consistent in the way that they deal with disciplinary offences, although they should also take individual circumstances into account. If an employer takes disciplinary action against an employee for his or her misconduct outside work, but did not take action against an employee accused of similar misconduct in the past, it must be prepared to justify the difference in treatment. Potential reasons for a difference in treatment include the comparative seriousness of the offence, the position that the employee holds and whether or not reports in the media have linked him or her to the employer, thereby bringing it into disrepute.

7. Try to investigate the circumstances relating to conduct outside work as fully as possible.

Even where an employer has justifiable grounds for taking disciplinary action, in the event of a claim, the employment tribunal is likely to hold that a subsequent dismissal was unfair if the employer did not follow a fair procedure. Employers are not expected to wait for the outcome of criminal proceedings before taking disciplinary action, but they must take reasonable steps to investigate the facts relating to the misconduct before deciding whether or not to hold a disciplinary hearing.

A proper investigation can prove difficult when criminal proceedings are pending. If the employee is unable (through imprisonment) or unwilling to take part in the employer's disciplinary process, the employer should carry out as full an investigation as possible, making it clear to the employee that if he or she does not take part, it will have to make a decision on the basis of the information available to it. It is also worth the employer making enquiries of the police officer in charge of the criminal investigation to confirm the details of the charges against the employee.

8. Give the employee the opportunity to state his or her case before taking disciplinary action.

Once the employer has investigated the misconduct in question as fully as possible, it must decide whether or not to proceed with a disciplinary hearing. The employee should be invited to attend the hearing (as with any disciplinary hearing), to answer the allegations and to have the opportunity to state his or her case. If the employee is unable or unwilling to attend the hearing in person, the employer is not required to wait for the outcome of the criminal proceedings and may decide to proceed in the employee's absence (unless the proceedings are very imminent, in which case it might be unreasonable for the employer not to wait until the outcome of the criminal proceedings are known). If the hearing is to be heard in the employee's absence, he or she should be given plenty of warning that this will happen and have the opportunity to make written representations.

9. Where appropriate, consider alternatives before dismissing an employee for misconduct outside work.

Employers should ensure that, even in a case where it would be reasonable to consider dismissing an employee, they also consider whether or not they can offer the employee alternative employment (for example in a role that does not involve handling money if the employee is suspected of committing a crime of dishonesty). In most cases, alternative work is unlikely to be practicable, but the employer must consider the alternatives, to help to avoid a potential finding of unfair dismissal.

10. Ensure that managers understand how to deal with misconduct outside work.

Managers should be advised that misconduct outside work can form the basis for disciplinary proceedings only in certain situations and that they should exercise caution before dismissing an employee who has been charged with, or convicted of, a criminal offence, even if he or she is in custody.

Where possible, managers should be provided with training in how to deal with disciplinary situations involving misconduct outside work. The Acas code and accompanying Acas guide: discipline and grievances at work (PDF format, 898K) (on the Acas website) provide useful guidance for managers on dealing with this type of situation.

Next week's topic of the week article will be the first in a new series on dealing with poor performance and will be published on 31 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.