An employer has the right to dismiss an employee whose private conduct
damages its reputation, but should first carry out an investigation and
consider the alternatives
It is clear from the situation John Leslie and Angus Deayton found
themselves in, that an employee’s private life is not always only their affair.
Inappropriate conduct outside work, if relevant to their job, will sometimes
entitle an employer to dismiss.
But exactly how far does an employee have to go before their job is at risk?
Taking action against an employee for what they do outside work isn’t easy. Not
only does the employer have to show that the outside conduct is relevant to
their job, it must also show the conduct makes the individual unsuitable for
the job. What makes an employee unsuitable depends, of course, on the nature of
the particular job.
Even then an employer cannot necessarily proceed straight to a decision to
dismiss. Unless the conduct is clearly gross misconduct, it is wise to first
explore possible alternatives to dismissal.
An employee with driving duties, sacked because of a driving ban, for
example, was found to have been unfairly dismissed because his duties could
have reasonably been carried out using public transport. What was relevant here
was the employee’s offer to travel by public transport, and at his own expense.
How far is damage to the employer’s reputation relevant? It is relevant but
won’t necessarily be easily established. Much will depend on the profile of the
individual and nature of their role. The dismissal of postmen convicted in
France for alleged World Cup violence, for instance, was found to be unfair
because the Post Office could not show that its reputation had been damaged by
the conduct.
Although Angus Deayton was not removed because of damage to the BBC’s
reputation – rather it was because stories of his private life dominated the
headlines which made him unsuitable for his role as host of a headline-focused
show – it is easy to see how reputational damage might have occurred, given he
is a prominent media personality and the adverse publicity his alleged conduct
attracted. Had reputational damage been relied upon, it might well have proved
reasonable grounds for dismissal.
Reputational damage has been successfully relied upon to justify dismissal
of an air traffic controller who smoked cannabis in his spare time, even though
he remained fully capable of carrying out his job. It was because of risk of
damage to public confidence in the air traffic control service.
So what should an employer do? It should have clear disciplinary rules in place,
explaining what is and is not reasonable conduct in and outside work. It should
communicate those rules to employees and make sure they are followed in
practice.
If an incident arises, ensure appropriate procedures are followed. A proper
procedure means a proper investigation – this must be the employer’s own
investigation: relying on a police investigation will not be enough. It must
give the employee the opportunity to answer allegations, have objective
evidence to back up the investigation, explore alternatives to dismissal and
establish satisfactorily that the off-duty conduct is actually relevant to the
employee’s ability to carry out their job.
By Gabriella Wright,
Solicitor, employment & pensions unit, Charles Russell
Need to know points
– Make clear what the rules on conduct outside work are
– Communicate those rules and follow them in practice
– Always investigate allegations of inappropriate off-duty
conduct
– Follow a fair process – rely on objective evidence where
possible
– Be satisfied the off-duty conduct makes the employee
unsuitable for the job
– Check whether there is any alternative to dismissal
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