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Misconduct is never an easy issue to manage, but it can be even more challenging when it occurs outside of work. Many people believe that whatever they do in their spare time is separate from their work life. However, this does not extend to poor conduct or wrongdoing that might impact their employer. Actions outside of work can still amount to serious misconduct. Therefore, it is essential to understand how to manage these issues and prevent them from happening in the future. This article explains what misconduct outside of work is and how to manage it. 

What Is Misconduct Outside of Work?

Misconduct can include a wide range of issues where an employee’s actions or behaviour are at fault in some way. This can range from lower-level misconduct like using inappropriate language or wearing inappropriate clothing to extremely serious issues involving violence. Misconduct outside of the workplace is when this poor behaviour occurs in the employee’s personal life, outside of the office or outside of work hours.

As an employer, there are definite limits on what aspects of an employee’s personal life you can know and take action about. All employees have the right to privacy and peaceful enjoyment of life outside of work. However, you may find a connection between an employee’s conduct outside of work and their job. In that case, you are entitled to take action. 

Note: It cannot be that the employee does something you disapprove of or do not like. There must be a real link between the misconduct and your business. 

To determine whether an employee has conducted misconduct outside of work, ask yourself: 

  • is there a link between that conduct and the employee’s job?
  • what is the link?
  • has the conduct harmed your business’ reputation (or has the potential to harm the employer’s reputation)? 

Where there is such a link, you may consider dismissal for serious misconduct or some other disciplinary action for misconduct. Importantly, you must always follow a fair process.

Additionally, there are multiple things to consider when deciding whether there is a link between the conduct and your employee’s job. You should ask:

  • does the employee’s behaviour impact other employees in some way?
  • does my business face some kind of damage or reputational harm? 
  • is the misconduct related to what the employee does at work?
  • have you lost trust and confidence in the employee as a result of their actions?

Ask Whether the Employee Brought Your Business Into Disrepute

Not all employees’ behaviour in their personal life will connect with their job or employer, even if you disapprove of it. A good guiding principle is to ask whether the employee’s behaviour has brought your business into disrepute. In other words, has the employee genuinely risked your business’ reputation?

If you could reasonably view an employee’s conduct as harming your business’ reputation, then you can consider dismissal for serious misconduct. Note that there does not need to be proof or evidence of actual damage to the business, just the potential for damage. 

For example, a video of your employee’s misconduct might make the news or go viral on social media. If your business is cited as their employer, this is likely to amount to potential harm for your business.  

Always Run a Fair and Reasonable Process

It is essential to run a fair and reasonable process with misconduct outside of work, just like for misconduct in the workplace. This should involve an investigation to work out exactly what happened and what the employee’s perspective is. You must give the employee the chance to get help from a support person or lawyer. Likewise, you have to genuinely consider what they have to say about their conduct. It can be challenging to ascertain what exactly happened in an outside-of-work event. This can complicate an investigation.

If you consider disciplinary action (particularly dismissal), you must be fair and proportional when considering what a reasonable response to the employee’s actions are. Under the law, the question is whether an employer’s decision to dismiss (or take another disciplinary action) is one which a “fair and reasonable employer could have taken in the circumstances”. 

Include A Clause In Your Employment Agreements

As an employer, it is best practice to clarify your expectations. This can include the expectation that your employees must behave appropriately when their conduct could impact their job or your business. 

Additionally, you can consider including a clause in your employment agreement templates. This clause can set out that you (as their employer) may dismiss an employee if their conduct outside work brings you or your business into disrepute. You can engage an employment lawyer’s assistance with drafting a clause that gives you flexibility if you encounter a situation of an employee’s misconduct occurring outside of work.

Key Takeaways

Misconduct outside of work can and often does amount to serious misconduct if it brings the employee’s job or employer into disrepute in some way. However, not all behaviour will reach this high bar. You should ask whether the employee’s actions have risked the business’ reputation or caused potential harm in some way. If they have done so, ensure you conduct a fair and reasonable process if you consider serious disciplinary consequences for the employee in question.

If you want to know more about managing misconduct outside of work, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

What is misconduct outside of work?

Misconduct outside of work is when an employee behaves in a certain way or commits a certain act outside the workplace (or outside of work hours). Likewise, that behaviour or act impacts their job or employer in some way.

Can an employee be dismissed for misconduct outside of work?

Yes, employees can be dismissed for serious misconduct even if it occurred outside of work. As an employer, you must ask if your employee’s conduct brought the business into disrepute in some way.

What is the process for handling misconduct outside of the workplace?

Employers need to run a fair and reasonable process for misconduct outside of work. It is the same for misconduct that occurs during work. This involves collecting facts and giving the employee the chance to tell their perspective. Likewise, your employee can get support from a lawyer or support person, if they choose. Finally, you must come to a reasoned decision after a thorough investigation and process.

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