Jay:
Good morning, everyone, and welcome to our webinar on “Work Hard, Play Harder: Managing Employee Off-Duty Behaviour.” My name is Jay, and I’m one of the senior legal consultants here at LegalVision. You’re in great hands today as our speaker will be Comfort, who is a practice leader in the Employment Law and Health and Safety team.
Before we begin, just a couple of housekeeping items:
- You will receive this recording and slides in your email. It’s also available on our YouTube channel.
- Please use the Q&A box to submit all your questions throughout the webinar, and we will answer them at the end.
- We have a little survey at the end. If you could kindly take some time to fill it out, we would really appreciate your feedback.
- By viewing this webinar, you qualify for a complimentary consultation with LegalVision to discuss how we can help your business. To claim that consultation, just leave your contact details in the survey at the very end. You can also do this anytime through our website.
Cool, well, I’ll pass over to Comfort. Thank you so much, and enjoy the webinar.
Learn how to manage employment disputes and protect your business from legal action.
Comfort:
Thank you very much, Jay. Good morning, everyone. Today we’ll be discussing the intersection between an employee’s personal life and their work life. I thought it would be useful for us to go through some case studies, reflecting on previous cases on the topic. This will guide you on how to take action. We’ll also look at the key relevant legal principles and how your internal policies can assist you when managing employee conduct outside of the workplace.
Another thing I wanted to highlight is situations where an employee has committed criminal conduct outside of your workplace and how you should deal with that in line with your processes. Before we get to answering your questions, which I recommend you submit as we go along, I will also take you through some practical steps that you should try to incorporate if you’re not already doing so.
Comfort:
Let’s get started then. The focus of the webinar today will be situations involving an employee’s conduct outside of your workplace, and when it will be appropriate for the company to take action. That action can include dismissal. The first thing I have to say is that we have all heard—or some of us have watched—the video of the CodePlay concert and the “kiss cam” featuring the then CEO of Astronomer and their HR lead. I say “then” CEO because, of course, we all saw the video and it led to public commentary. As a result, the business had to act, and the CEO stepped down.
Comfort:
The key issue here is always whether an employee’s conduct outside the workplace is considered within the scope of their employment in your company. Generally, these situations arise in different contexts. For example, an employee posting controversial content or expressing political or religious views on social media platforms like Instagram, X (formerly Twitter), or LinkedIn. Employees attending work-related events and then organising an afterparty, or situations where employees attend controversial political rallies, are also common. We’ve seen this happening recently.
You might also find yourself dealing with an employee charged with a criminal offence, such as driving under the influence. The key thing is always to consider the extent to which you, as the employer, can manage such conduct, especially because it occurred outside of work. This area of law is challenging to navigate, and that’s why I thought it would be useful to share this webinar with you today to answer your questions and provide clarity on what a tribunal will look for.
Comfort:
Always exercise caution before addressing an employee’s conduct that occurs outside of the workplace, especially if it happens in their personal time. Matters should be handled on a case-by-case basis; you shouldn’t have a blanket rule such as “if you post about us and we find out, we’ll fire you.” That is not recommended.
Comfort:
Based on our experiences in this area, the tribunal tries to strike a balance between the conduct and its link to the employee’s employment. They also consider the employee’s human rights, such as their right to privacy and freedom of expression. That’s why it’s important for you to consider these factors during your internal processes.
Comfort:
We’ll look at at least two court cases during this webinar, time permitting. The first case I want to discuss is one that highlighted the crossover between an employee’s personal and professional life. It was a case that escalated to the employment tribunal. Let’s start with the background and facts of the case.
Comfort:
In this case, the claimant, Mrs. Issuewood, argued that she was unfairly dismissed by her employer, West Midlands Trends Ltd. The employment tribunal agreed with the employee and ruled that she was unfairly dismissed. The claimant had attended a work webinar that was jointly hosted with her employer. The webinar was about “white privilege” and was intended to promote awareness on equality and diversity issues among employees.
Comfort:
The claimant attended the webinar remotely from home. After the webinar ended, while other participants were logging off, the claimant was overheard making remarks. The employee was having a private conversation with her partner in her kitchen. The employee said, “I couldn’t be asked about it… I would just get effing angry if I had to say my mind,” and went on to ask, “Do they have black privilege in other countries?” She was sharing her perspective on the webinar, unaware that her colleagues were still logged on and overhearing her comments.
Comfort:
The colleagues complained, and the matter was raised with the employer. The claimant was suspended immediately and, following a disciplinary hearing, was dismissed for gross misconduct—without notice or any payment for her notice period.
Comfort:
The tribunal’s reasoning was that the dismissal was unfair. The tribunal considered the importance of upholding freedom of expression, as this is protected under human rights law. The tribunal also took into account the context that the claimant was expressing a private view at home, not intending for her colleagues to hear her remarks.
Comfort:
The tribunal found that the employer’s decision to dismiss the claimant for gross misconduct was not within the “band of reasonable responses.” The comments were not discriminatory or unlawful, and the claimant was apologetic for the unintended overhearing of her private conversation. The tribunal also considered the claimant’s 11 years of service and her unblemished record.
Comfort:
This case highlights the importance of considering the circumstances when dealing with off-duty conduct. Each case will be assessed based on its own facts, and the tribunal will balance the employee’s human rights with the reasonableness of the employer’s actions.
Comfort:
In this case, the tribunal also noted that the employer had clear policies in place, including equal opportunities, behaviour, and code of conduct policies. However, the tribunal still ruled in favour of the claimant because the employer failed to explore the option of additional training before resorting to dismissal.
Comfort:
Let’s now revisit the legal principles that the tribunal will consider when handling off-work conduct. As an employer, you must demonstrate that any dismissal satisfies one of the potentially fair reasons set out in the act, and that the conduct relates to the employee’s employment relationship with the company.
Comfort:
If you have a fair reason, the dismissal will only be fair if you also act reasonably during the process. This includes carrying out a fair investigation, ensuring employees are reminded of their rights to be accompanied to formal hearings, and following the ACAS Code of Practice.
Comfort:
You do not need conclusive proof, like CCTV footage, to act on allegations of misconduct. Instead, you need a genuine belief based on reasonable grounds and the information you gather during a thorough investigation.
Comfort:
The tribunal will also look at whether the dismissal is fair based on the reasonableness of your decision. The key question is whether you genuinely believed the reason for dismissal was fair, and whether you had enough evidence to support that decision. It’s also important to ensure that employees have the opportunity to respond to the allegations, as this is a fundamental part of the process.
Comfort:
In terms of checking whether you’re being reasonable, the tribunal will consider factors such as whether you genuinely believed the reason for dismissal was fair and whether you had enough evidence to make that decision. It’s crucial to follow proper procedures, carry out a thorough investigation, and allow employees to respond to the allegations before making any decisions.
Comfort:
Moving on, the tribunal will also consider the human rights element, particularly freedom of expression and the right to privacy. In the cases we’ve looked at so far, the tribunal placed significant weight on the right to freedom of expression, even if the views expressed were controversial. However, if the conduct occurs outside of the workplace and has no direct link to the employee’s role, the tribunal may find that dismissal is unreasonable.
Comfort:
The tribunal will weigh the employee’s right to privacy and freedom of expression against the impact the conduct may have had on the employer’s business or reputation. If the conduct did not affect the employee’s work or relationship with the company, and it wasn’t intended to be heard by others, it may not justify dismissal.
Comfort:
Now, let’s look at the case of Kable v. London Borough of Hammersmith. In this case, the claimant argued that they were unfairly dismissed after attending a political rally in their personal capacity. The tribunal found that the employee’s right to freedom of expression was protected, and the dismissal was deemed unfair.
Comfort:
The employee attended the rally during their own time, wearing no clothing that identified them as an employee of the council. The employer dismissed the employee after their views went viral on social media. The tribunal found that the employee did not intend for their views to be made public, and there was no direct link between the conduct and their employment.
Comfort:
The tribunal ruled that the employee’s political views, expressed in their personal time, did not constitute grounds for dismissal. This case emphasises the importance of understanding the context in which the conduct occurred and whether it has a direct impact on the employee’s role.
Comfort:
In contrast, in the case of Crisp v. Apple Retail UK, the tribunal upheld the dismissal of an employee who made derogatory comments on social media. Apple had made it clear in their policies and training materials that protecting the company’s reputation was a core value. The tribunal found that the employee did not have a reasonable expectation of privacy regarding their Facebook posts, even though the content could only be seen by their friends.
Comfort:
This case highlights the importance of clear policies and expectations around social media use. Employees must be aware of the potential consequences of their actions, especially if those actions are linked to their employment. In this case, the tribunal sided with the employer, as the employee had violated a clear company policy regarding the protection of the company’s reputation.
Comfort:
Similarly, in the case of Teat v. Tele UK, the tribunal agreed with the employer’s decision to dismiss an employee for making inappropriate comments on social media. The comments did not damage the employer’s reputation but were considered harassment of a colleague, which breached company policy. The tribunal found that the employee’s conduct was sufficiently serious to justify dismissal on grounds of gross misconduct.
Comfort:
These cases demonstrate that, while employees have the right to express their views, employers also have the right to protect their business and maintain a respectful workplace. Clear policies, regular training, and a fair investigation process are key to managing off-duty conduct.
Comfort:
So, how can your policies help you in these situations? As we’ve seen in the Apple case, internal policies can help to regulate employee conduct both at work and outside of the workplace. Policies such as a social media policy, a code of conduct, and an anti-harassment policy can set clear expectations for employees and guide their behaviour.
Comfort:
Having these policies in place ensures that employees understand what is expected of them and what is deemed unacceptable. It also helps to demonstrate the company’s position if any disciplinary action is taken. Policies should be communicated to employees, and training should be provided to ensure they understand the impact of their actions, both in and outside of the workplace.
Comfort:
It’s important to note that policies that completely prohibit the use of social media may not be enforceable, especially when employees are not at work. However, you can still implement policies that restrict the use of social media during working hours or while using company equipment. This helps to mitigate the impact on the company’s reputation.
Comfort:
In the case of political views, employers cannot prohibit employees from expressing their beliefs outside of work, provided those views are not discriminatory, racist, or unlawful. Employees should be allowed to express their views privately, as long as it doesn’t impact their work or the company’s reputation.
Comfort:
When investigating off-duty conduct, it’s crucial to ensure that the employee’s right to freedom of expression and privacy is respected. If an employee’s conduct has the potential to impact the business, it may be necessary to take disciplinary action. However, this should always be done with careful consideration of the circumstances and in line with your company’s policies.
Comfort:
Finally, let’s talk about situations where the employee’s conduct involves criminal activity. If an employee is charged with or convicted of a criminal offence, it doesn’t automatically justify disciplinary action. What you should focus on is the effect the charge or conviction has on the employee’s ability to do their job and whether it affects their relationship with the company.
Comfort:
In cases where the employee is unavailable for work, for example, if they are in police custody, you should consider whether the business can continue without them. If the employee’s conduct has a serious impact on their job, such as losing a necessary licence, it may be grounds for termination. However, this should be done after a thorough investigation and a fair process.
Comfort:
Always make sure that you follow proper procedures when dealing with criminal cases. If an employee refuses to participate in the investigation because their criminal lawyer advises them not to, you should continue the process based on the available information.
Comfort:
Lastly, if an employee is sentenced to prison, this may frustrate their ability to fulfil their duties, and it could lead to termination. However, this should be done with proper documentation and a clear explanation of how the employee’s actions have impacted the company.
Comfort:
In conclusion, always carry out a proper investigation into any allegations of misconduct, especially when the conduct occurs outside of the workplace. Ensure that the investigation is thorough and considers the employee’s rights. Your assessment should be clearly documented, as this will be crucial if the case is challenged at a tribunal.
Comfort:
Thank you for joining today’s webinar. I hope you’ve found it informative. I’ll now pass back to Jay.
Jay:
Thank you very much, Comfort. That was very informative. I think we all learned something today. Guys, download the guide on the screen right now—it’s a guide to UK employment disputes. It’s very helpful. I hope you don’t need it, but it’s good to have available should any situations arise. We have lots of free resources like this available on our website. So, if you ever need that extra boost, feel free to jump on and take a look.
Jay:
We do these webinars regularly, usually twice a month. Our next one will be about M&A, “What Every Business Owner Should Know.” It’s on Tuesday, December 9th, at 11:00 AM. You can register through the link on our website.
Jay:
Please remember, we will send the slides and recording to your email after the webinar. In the meantime, please submit any remaining questions via the Q&A box. If we didn’t get to your question, feel free to include it in the survey at the end.
Jay:
Thank you for your time today. Have a great rest of your day.
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