Membership of extreme political parties, criminal activity, football hooliganism, taking illegal substances: if your workers' leisure activities create problems with other colleagues or customers or could potentially damage your business' reputation - what can you do?
Employees' activities outside work - including those resulting in criminal offences - are not grounds for dismissal unless they affect employees' ability to do their job, which could be because they affect relations with their colleagues, suppliers or customers or bring the business into disrepute. They must amount to 'some other substantial reason' justifying dismissal.
For example, a person entrusted with cash who is convicted of a dishonesty offence, a hospital worker with access to drugs who is convicted of drug-related offences or a drink-driver who drives a lorry, may all be situations that justify dismissal. Binge-drinking or public order offences by administrative staff may not - although the more senior or public-facing the employee, the greater the likely connection with their employer.
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Examples in the courts have included:
- A minibus driver, responsible for transporting vulnerable adults and children - predominantly Asian - to schools and day centres in Bradford, was dismissed after he became a British National Party councillor. The employer cited the potential threat his public support for BNP policies posed to the wellbeing of its clients and employees, so the dismissal was to satisfy the employer's duty of care to passengers, fellow employees and the employee himself.
- Another minibus driver was employed by a charity that provided services to a local authority. His job involved working with disabled children. Following allegations that he had abused his nieces, the South Tyneside Safeguarding Children Board decided he should no longer be allowed to work with children. The police did not prosecute him and he claimed he was innocent. The charity tried to persuade the Council to change its mind. It failed, and was unable to offer him suitable alternative employment, so dismissed him. His claim for unfair dismissal failed as the third party pressure amounted to a 'substantial reason of a kind such as to justify the dismissal', and proper procedures had been followed.
- A PR worker at a major telecoms company, whose job included consulting with local community groups about siting of mobile phone masts, posted a 'lefty lexicon' on a blog on a Tory website. Definitions of 'Islamophobic' and 'Palestinian' were included. He also defined 'Consultation' as "a formal system for ignoring public views while patronising them at the same time" and a 'Community leader' as "someone plucked from obscurity to represent the views of the community". The telecoms company received a number of complaints from customers. The employee was suspended on grounds that his comments affected his ability to do his job, particularly among ethnic and culturally diverse communities.
- A worker was dismissed by her accountancy firm employers for writing a blog that included information about her work (including the steps leading up to her dismissal for writing the blog). The blog was anonymous, but included photos of the employee that enabled her to be identified. The employer claimed she brought the firm into disrepute.
- An airline attendant was dismissed by her employer after posting 'inappropriate' pictures of herself - wearing her uniform - on a blog.
- A postman reported in the national press as being involved in football hooliganism after a UEFA cup game in Copenhagen was dismissed for bringing the Post Office into disrepute.
- A London Underground employee was filmed by an onlooker calling an elderly passenger "a jumped up little git" and a "little girl". His employer, Transport for London, suspended him while carrying out an investigation. The onlooker posted a report of the incident on his blog, including a link to the video, and indicated he thought the employee should lose his job. A Twitter campaign was launched for his dismissal, and many bloggers posted calls for his resignation across the internet. Boris Johnson, then the Mayor of London, said on Twitter that he was appalled. The employee resigned, but if the investigation had shown the employee had acted as claimed, it is likely he would have been dismissed fairly, including as a result of third-party pressure.
Protecting your business
To avoid grey areas you could:
- Provide examples of behaviour or offences that will constitute misconduct or gross misconduct or bringing your business into disrepute in your staff handbook.
- Highlight the higher standards required of senior and/or public-facing employees.
- Prohibit staff from identifying your business in a personal blog, even in their own time, in your email and internet policy.
- Specify in your email and internet policy that maintaining a blog could amount to gross misconduct justifying dismissal in certain circumstances, for example, if it upsets colleagues, customers or other third parties.
- Ensure discipline and grievance procedures comply with the relevant Acas codes, including considering whether the employer can offer suitable alternative employment.
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