Q One of my staff has been convicted of smashing a local shop window while drunk. Can I dismiss him?
A The Acas Code of Practice on Disciplinary Practice and Procedure states that criminal offences outside employment shouldn’t be treated as automatic reasons for dismissal. The main consideration should be whether the offence makes the worker unsuitable for their type of job.
In X v Y (EAT 0765/02), a children’s charity worker was fairly dismissed after receiving a caution for gross indecency, and in McLean v McLane Ltd (EAT 682/1994) a fork-lift truck driver was fairly dismissed for criminal damage and drug possession convictions. But even when dismissal seems inevitable, employers must be prepared to let the worker offer an explanation before their employment is terminated, as happened in Lovie Ltd v Anderson (1999, IRLR 164).
Q Two married workers are about to start IVF treatment. Do they have a right to time off?
A There is no statutory right to time off for fertility treatment. A few employers offer paid leave and some allow discretionary unpaid leave, but in most cases, staff have to take sick leave or holiday. Case law states that treating time off for IVF as sickness absence is not discriminatory (LB Greenwich v Robinson (EAT 745/94), where an employee was selected for redundancy because of her sickness record, due to IVF.
However, it is important that people undergoing fertility treatment are treated in a comparable manner. Men generally take less time off for treatment, so a woman could claim indirect discrimination if she is disciplined for sickness absence arising from such treatment, whereas the man is not.
Q There are several relationships between members of staff in my company, including an affair between a junior secretary and her boss. Should I have a policy in place to deal with this?
A Office romances can lead to problems at work, particularly in a small office, or when the relationship is between a junior and senior member of staff.
Confidential information can be disclosed through ‘pillow talk’, and conflicts of interest can arise if the more senior worker makes a decision that will affect the junior one, such as redundancy selection or disciplinary matters.
In heterosexual workplace relationships, the woman is generally the more junior partner, so employers should beware of discrimination claims if redeployment automatically focuses on the more junior member of staff.
It may be sensible to have a policy that sets out the conduct expected from couples at work, and the consequences of any actual or perceived conflict of interest. But employers will appreciate that it is unrealistic to prevent or influence office relationships, and that there are very few circumstances in which romantically-linked members of staff can be fairly dismissed by reason of their relationship.
Q One of my employees works in a massage parlour in his spare time. Can he be dismissed?
A Generally, employers can’t fairly dismiss just because it does not approve of outside activities.
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Dismissal may be fair, however, if the activities have an adverse impact on the employer’s reputation, or if the worker’s role carries certain responsibilities and their spare-time activities are incompatible with that position. This was the case in Pay v Lancashire Police Service (EAT 1224/02), where a probation officer working with sex offenders was fairly dismissed for being the director of a company that sold products associated with bondage, sadomasochism and domination.
The employer must be able to justify interfering with the worker’s right to a private life, so the impact on the employer must be substantial.
