Dismissal on the grounds of personal conduct

When newspapers around the world recently captured the moment that Professor Chris Whitty was accosted by a group of jeering males, the world and his wife were quick to pass judgement.

Among those caught by the tidal wave of reaction, was no doubt a certain estate agency boss.

Within days, that employer would go on to terminate the contract of one of the men pictured so publicly.

It seems likely, and perhaps not unreasonable, that he may have deemed the actions of the individual to be such that it might bring the organisation into disrepute.

However, is it ever truly okay for a boss to sack an employee for something carried out in ‘personal time’?

Would a tribunal find in favour of an employer anxious about reputational impact, or a member of staff who insisted they had every right to behave as they see fit outside of work?

It’s important to make the point that such cases can be finely nuanced, and there should never be complacency on behalf of either party.

It’s also worth acknowledging that the scope for such cases is likely to remain high, particularly in an era where the actions and views of individuals can so easily be featured on social media and shared among the masses.

When it comes to employment law and the scenario whereby a company finds itself needing to justify its actions through the process of a tribunal, the onus will always be on the employer to demonstrate that it acted in accordance with its own policies and procedures and to evidence that anything a worker did or said truly impacted (or stood to impact) the organisation’s reputation and breached the contract of employment or company policy.

It would simply not be enough for a company owner to have different moral or political views to the staff member, or to be annoyed at what the person gets up to in their private life.

A proportionate response to any (alleged) incident would always be key.

Perhaps as a manager, you might be asking yourself:

• How offensive or inappropriate will this action / comment appear to the masses?
• Has this employee been caught in a context whereby the brand’s identity is immediately apparent or associated? (For example, are they still in uniform?)
• Will this incident come to the attention of our core client?
• Does the employee have a customer facing role, and if so, is it likely customers may request less engagement with that individual, even if not the brand?
• Does the attention caused by this incident significantly disrupt and disturb the company’s daily priorities?
• Has this action caused discomfort or upset to other employees, such that they may want to swiftly exit the organisation or raise a complaint?

While this is indeed a tricky scenario to navigate, there are ways an employer can think ahead to avoid being in this position.

Firstly, make sure you have a code of conduct in place, and ensure all staff are alert to it. Ensure that your contract of employment is clear about what the expectations are of the employee’s conduct both inside and outside of work.

Refine or develop your social media policy. You might want to make it clear that actions and comments about your brand or fellow colleagues – even outside of work time – are not deemed appropriate and may result in disciplinary action being taken.

And finally, be sure to continually revisit your disciplinary procedures. Stay on top of significant legal updates in respect of this area, and, where necessary, have an external practising specialist review what you have in place and suggest any appropriate improvements.

For help with reviewing and updating your contracts of employment and company policies, or dealing with specific employee challenges, please contact a member of our friendly and experienced MAD-HR team today.