Following Jamie Carragher’s recent suspension by Sky after he was filmed spitting towards a father and his daughter in their car, we look at the key points employers should consider before taking action against employees who have been up to no good outside the workplace.
Employees may well think what they do in their own time is none of their employer’s business, and in many instances, that is right. However, there will be cases where an employer is entitled to take action.
‘Conduct’ is a potentially fair reason to dismiss an employee. This can include conduct outside of work.
The key question is, what is the link between the employee’s conduct outside the workplace, and the employee’s employment?
Here are some key points:
Is there an adverse connection between the employee’s ‘offence’ and their job?
For example, the dismissal of a cleaner who pleaded guilty to an offence outside of work of obtaining money by deception, was found to be fair, due to the link between the offence and the type of work she did.
In another case, an employee was dismissed after having a domestic altercation with his partner and being charged with assault. The employer, although accepting the employee had acted in self-defence, decided he presented a risk its other staff and its property. On the facts, the court decided the dismissal was unfair, as it did not sufficiently impact on the employer-employee relationship.
Is there any damage, or potential damage, to the employer’s reputation?
Jamie Carragher is in the public eye and has a media profile, so it is easier to see how Sky could argue its reputation might be adversely affected by his conduct. The same might be said of a public service employee, or an employee who is the figurehead of an organisation.
However, in many cases, the employer will not be identified, so it may be very difficult to establish reputational damage.
Remember to investigate
An employer still needs to make sure it carries out a full investigation, just as it would do if the conduct had happened at work.
Where the police are involved, an employer does not have to wait until the criminal proceedings are concluded before doing its own investigation. However, the employer should bear in mind the employee may be reluctant to say anything to the employer that might prejudice his criminal case.
Cases involving very serious criminal conduct outside of work, particularly where dismissal is going to affect the employee’s future employment prospects, should be handled particularly carefully by the employer.
Before suspending, the employer should think about whether it is appropriate, and what purpose it will serve. A ‘knee-jerk’ decision to suspend may be risky, so care should be taken. Any period of suspension should be kept under review and should be for no longer than is necessary.
As a result of his conduct, Jamie Carragher was suspended for the rest of the football season. It is likely this form of suspension was used by Sky as a disciplinary sanction in itself. Usually, suspension is not a penalty. If an employer does want to use suspension as a ‘punishment’, it should make sure there is a right in the employee’s contract to do so.