What can employers do if they think staff’s behaviour outside work oversteps the mark?
The ninth series of the TV reality show Big Brother yet again raises questions about employees’ duty to uphold their employers’ reputations outside work.
There is an implied term in every employment contract that employees owe a duty of good faith and fidelity to their employers and there will be occasions when an employer can discipline or even dismiss an employee if conduct in their private life brings the employer into disrepute.
While some conduct outside of work can be classed as a disciplinary offence, it largely depends on the conduct, the nature of the employee’s job and the potential damage to the employer’s reputation. There must be a link between the off-duty conduct and the nature of the work and this is rightly decided on a case-by-case basis.
Recently, Alexander Graham, the RBS city banker who organised a drink-fuelled party on the tube before the start of the transport system’s alcohol ban, feared he would lose his job. In my opinion, it would have been right in such circumstances to dismiss him if he worked as an alcohol counsellor or for a company known to advocate a responsible attitude to drinking, but not otherwise, as his actions were not illegal or immoral and did not have a direct impact on the reputation of RBS.
What people get up to in their private lives, unless it affects their job, is largely their own business. An employer will have to be careful if they want to dismiss a member of staff without hard evidence that their actions have damaged the reputation of the company.
In the 2003 case of Pay v Lancashire Probation Services, a probation officer was employed to deal with sex offenders. The employee sold bondage and sado-masochism products through a website and also performed in fetish clubs outside of work. When his activities came to light, he was dismissed.
The court took the common-sense approach and held the dismissal to be fair, as the nature of the employee’s out of work activities had a direct impact on the job. Had the employee in this case been a clerk, then it is unlikely that his dismissal would have been fair.
If employees commit a ‘disciplinary offence’ within the vicinity of the workplace or on an occasion when they are associated with the company, such as a work night out, then this could perhaps be classed as bringing the company into disrepute and be punishable. However, this largely depends on the circumstances of the case.
Human rights regulations allow employees the right to a private life. So what is the status of employees maintaining personal blogs? In 2005, a disgruntled employee of Waterstones wrote a personal blog where he referred to his employer as ‘B*stardstones’ and made references to his ‘evil boss’. He was dismissed, as he was held to have brought the company into disrepute.
Conversely, another employee who kept a website diary where she rehearsed various anecdotes from her day at work was found not to have damaged the company’s reputation as the diary did not sufficiently identify the employer.
Disciplinary procedures can be clear about what constitutes misconduct and, in particular, employers should make sure that policies on computer use cover the possibility of an employee bringing the company into disrepute through blogging.
Sarah Turner, employment law partner Turner Parkinson
Disciplinary offences depend on the nature of the job and potential to damage a company’s reputation
There must be a link between the damaging off-duty conduct and the nature of the work
An employee’s private life cannot be governed by an employer – the right to a private life must be respected provided it does not impact on the job
Courts take a common sense approach to dealing with circumstances on a case-by-case basis.