This
summer has yet again highlighted the blight of yob culture, as English
holidaymakers ran amok in Portugal during the Euro 2004 championships. Paul
Yandall investigates the legal rights and obligations on employers when staff
are caught behaving anti-socially outside the workplace.
You
see them almost every time there is a major football tournament, engaged in
battle against the police, throwing chairs, bricks, almost anything they can
get their hands on.
The
next day, invariably, a face is plastered all over the newspapers and
television. It is the contorted face of one of the offending rioters – one who
has been arrested, handcuffed, convicted and deported.
But
this time, it is a familiar face. In fact, you’re his boss.
If
you’re a manager at the Kent Fire & Rescue Service, chances are you’ll know
exactly how that feels. One of its firefighters, Gary Mann, was sentenced in
Portugal to two years in prison for his part in a riot during Euro 2004.
A
legal loophole allowed him to walk free after being deported back to England.
So
what action can an employer take action against such an employee? Should an
employer act at all? After all, the offensive behaviour happened outside of the
workplace. And what constitutes ‘offensive behaviour’ anyway? Serious misconduct
for one employee could be considered minor for another in a different industry.
“It
is a real minefield,” says Robert Riley, an employment law specialist at
Addleshaw Goddard.
“It’s
difficult because there’s a balance to be struck between an individual’s right
to privacy and an employer’s concerns over the impact out of work behaviour
might have.”
What
an employer has to show is either an employee’s actions have harmed the company
and brought it into disrepute, or the worker can no longer be trusted to carry
out his or her duties.
“You
could say, for example, that in the case of the rioting at Euro 2004, those
type of violent tendencies or hooliganism would not be wanted in a workplace
such as the fire service,” says Riley.
But
before employers take action, they should make sure of their grounds, check the
terms of the employment contract, adhere to set procedures, and seek advice.
“Difficult
cases can go either way in the [Employment Appeal] Tribunal so it’s important
to have solid grounds for action,” says Riley.
Convicted
criminal behaviour, whether at home or abroad, is usually more than enough to
earn an employee a caution or a dismissal. But the types of behaviour that
might be construed as misconduct are endless and can include anything from
extreme political expression to sexual behaviour.
“There
are 101 different standards depending on what you’ve done to cause concerns and
what you do for a job,” says Robin Lewis, a partner at specialist law
employment firm, Bindman & Partners.
The
recent dismissal of a probation officer for playing a role in a sadomasochistic
film might not have been upheld if the employee was, for instance, a
supermarket shelf stacker.
“Unusual
sexual behaviour might not be relevant in the shelf stacker’s case,” says
Lewis. “The closer the form of perceived misbehaviour comes to the employee’s
actual sphere of work, the more problematic it becomes.”
Privacy
laws are also an important consideration as employees are entitled to protect
their private lives. But employees must also realise that not every act
performed outside of work can be classified as private.
Sonia
Velton, a solicitor at employment law specialists Bird & Bird, cites the
case of a social worker arrested for ‘cruising’.
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He
was dissmissed, not because of the actual incident, but because he had lied to
police about the nature of his work and risked embarrassing his employer.
“He
appealed the dismissal on the grounds of privacy,” says Velton. “But it was
upheld [by the Employment Appeal Tribunal] because his behaviour in a public
toilet was not considered private.”
