What Can an Employer Do About Poor Conduct Away From the Workplace in England?

As an employer, you may be used to dealing with poor conduct in the workplace. However, the poor conduct of employees outside of the workplace may also be a matter for you to deal with. You must correctly identify whether it is a matter you may address and, if so, follow the correct procedure. Failure to do so may lead to unfair dismissal claims against your business. This article will explain what employers need to know about poor conduct away from the workplace in England. It will explore when poor conduct away from the workplace may be an employment matter and how you might deal with it. Lastly, it will address how you may prevent this from occurring in the first place.

Is it an Employer Matter?

It is generally not an employer matter when employees behave inappropriately outside the workplace and are not working for you. However, it may be a matter of concern when, for example, it:

• adversely affects your business relationships;
• damages your reputation as an employer; 
• damages your relationship of mutual trust and confidence;
• is incompatible with your employee’s role; or 
• affects your employee’s ability to carry out their job. 

As an employer, you must be careful about deciding if your employee’s behaviour adversely affects your business. Whilst you may not like how your employee behaves away from the office, this does not automatically make it a matter for you to deal with. For example, employees voicing political opinions that do not align with your own are usually not a matter you can address. You need to balance your employee’s right to privacy and your right to protect your business.

How to Deal With Poor Conduct 

Where you have established that your employee’s poor conduct away from the workplace is a matter for you as an employer, you must determine how to deal with it. This will depend on the unique circumstances and nature of the case. You will likely need to conduct your standard disciplinary procedures to establish what action to take. If the situation warrants it, you may also turn to your anti-bullying and harassment policy.

Using Your Disciplinary Process

Notably, criminal behaviour does not automatically require your attention as an employer. It will depend on whether it affects their employment with you. If you decide to take action, you do not need to wait for the result of a criminal investigation. Additionally, you should not involve the police in your investigation or actions. Where criminal activity results in a lengthy prison sentence, you may find this frustrates your employment contract with your employee. Therefore, you will not need to carry out a disciplinary process. However, you should be wary about assuming this. 

Dismissal 

After following a fair disciplinary procedure due to the poor conduct of your employee away from the workplace, you may decide it is appropriate to dismiss them. There are five potentially fair reasons for dismissal. Dismissal for poor conduct away from the workplace is likely to fall under the ‘some other substantial reason’ category. If you decide to dismiss under this reason, you will usually need to show that your employee’s actions have directly resulted in you either:

• losing business;
• losing clients or customers; or
• receiving negative press coverage.

Preventing Poor Conduct Away From the Workplace 

Rather than finding yourself in a situation where you face poor conduct away from the workplace, trying to prevent it in the first place makes sense. Here are some tips on how you may do this.

1. Create a Code of Conduct

This should state what behaviour you expect from your employers, which could reflect your core values as an employer. It can also give examples of what you consider poor conduct away from the workplace. For example, you might distinguish between misconduct and gross misconduct and the difference expected in standards of behaviour between junior and senior staff. 

Your policy should state the consequences for poor conduct away from the workplace. You should ensure that the code of conduct is easily accessible to your staff. A code of conduct or policy can act as a defence should you face an employment tribunal.

2. Form a Social Media Policy

Social media is a likely platform for employees to display poor conduct away from the workplace. Therefore, a social media policy can contain rules about what your employees can do away from the office on social media and what they cannot do. For example, you may ban:

• posting remarks which may be bullying or harassing;
• uploading photos of employees at work; and
• voicing personal comments about your business and those it deals with.

3. Review Your Disciplinary Policy

You should ensure that your disciplinary policy deals with misconduct away from the workplace. As you will rely on this policy regarding poor conduct away from the workplace, it is essential to update it to reflect this.

Key Takeaways

Where your employee engages in poor conduct away from the workplace, it is rarely a matter for you as an employer. However, there may be times when it is adversely affecting your business relationships or your employee’s ability to do their job. Where it matters for you as an employer, you may take disciplinary action, leading to dismissal. However, you must still follow a fair and full procedure when carrying out your disciplinary procedures. When dismissing your staff, you must demonstrate that your reasons fit into one of the potential reasons for dismissal, such as ‘some other substantial reason’. 

If you need help understanding what you can do about poor conduct away from the workplace in England, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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