Misbehaving outside work

Q If an employee is pictured misbehaving in public in the national media, what grounds would the employer have for dismissal or disciplinary procedure?

A Depending on the nature and severity of the misbehaviour, an employer may be able to impose a disciplinary sanction including dismissal on the grounds of misconduct. In determining whether disciplinary action is appropriate following disciplinary proceedings, key points to consider may include:

  • The severity of the misbehaviour
  • Whether the misbehaviour impacts on the employee’s ability to do their work
  • The extent to which the misbehaviour interferes with or damages (or has the potential to interfere with or damage) the employer’s reputation or legitimate business interests
  • Any mitigating circumstances.

An employer may also be able to instigate disciplinary action on the basis that the employee had breached an express contractual provision, e.g. not to bring the employer into disrepute.

Q What disciplinary procedure would be appropriate?

A As a matter of good practice, the employer should follow the statutory dismissal procedures. This would involve as a minimum, writing to the employee to inform them of the “grounds of complaint” against them and inviting them to a meeting in which the allegations are discussed. If the decision is taken to dismiss or issue a final written warning, they should be given the opportunity to appeal that decision. The employer should also follow any internal disciplinary procedure which is in place.

If the employee had less than one year’s service then depending on the circumstances, the employer may choose to short circuit the disciplinary procedure process and move straight to dismissal.

Q If an employee has taken their annual leave to appear in a reality TV show and is being paid by the programme maker, what is the employer’s position re disciplinary action?

A Many well-drafted contracts of employment for full-time employees include provisions dealing with outside interests, e.g. prohibiting the employee from undertaking any other employment outside working hours, without written permission from the employer. Depending on the extent of such provision(s), an employer may rely on those provisions to demand that the employee cease involvement in the programme and/or instigate disciplinary action.

In the absence of an express contractual provision, common law principles dictate that an employee is free to do what they wish outside of working hours provided that the activities do not cause substantial harm to the employer, for example by interfering with or damaging its legitimate business interests or bringing it into disrepute. In determining whether the employee’s action had breached this implied duty of fidelity, relevant considerations would include: the nature of the employee’s role, their seniority, what the reality programme is and the harm (or potential harm) inflicted on the employer.

Whether or not there are express contractual provisions, if an employer chose to dismiss, it would need to demonstrate that it acted reasonably and where the employee has more that one year’s service, that it had followed the statutory dismissal procedures.

Q If an employee requests unpaid time off to take part in a reality TV show what is the employer’s position?

A In the absence of an express contractual provision to the contrary and on the basis that the employer had not previously granted such a request to others (so, was not at risk of discrimination claims for less favourable treatment) the employer would have no obligation to grant unpaid leave.

Q What would occur if the employee walked out to do so?

A The employer may be able to treat the employee’s failure to attend work as unauthorised absence. This would usually be a fair ground for summary dismissal, particularly if the employer had informed the employee of the consequences of their actions. Alternatively if the employee had made it clear that they had no intention of returning and had not served the requisite notice, the employer could treat the employee’s actions as being a repudiatory breach of contract, bringing the employment to an end.

Q If an employer wants to dismiss an employee who is part way through a reality TV show appearance, what are the steps that should be taken?

A The statutory minimum disciplinary procedures dictate that the employer should invite the employee to a disciplinary hearing, which the employee should have the opportunity to postpone at least once.

In cases of gross misconduct, where it would be pointless to invite the employee to a disciplinary meeting (for example the employee was locked in the Big Brother house or stranded on Castaway island) the employer may be able to argue that the modified disciplinary procedure was appropriate, which would negate the need to a hearing. Since the modified procedure is considered to be contrary to the principles of natural justice, it should only ever be used in extreme circumstances e.g. where there appear to be no mitigating circumstances. Most importantly, the employer must act immediately on learning of the gross misconduct.

Q What can employers do to limit the risk of a reality TV fall-out?

A Employers should have clearly drafted contracts of employment and disciplinary procedures in place which include provisions regarding outside employment, bringing the employer into disrepute or failing to act in their best interests.

Larger organisations may wish to draw up a policy to ensure that a consistent policy is being applied as regards “extra-curricular” activities such as appearing on such programmes and to put in place a policy to deal with adverse publicity.

Stephanie Dale, partner and Hannah Ford, associate, Stevens and Bolton

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