Conduct outside the workplace: ‘paws’ for thought

French international football player Kurt Zouma is to face a police investigation after footage of him kicking and slapping his pet cats was published. There have been calls for him to be dismissed after the video was released.  The RSPCA have condemned his actions and have removed the cats from Zouma whilst a police investigation is ongoing.

Chris Hendry of Viberts looks at conduct outside the workplace and if this can entitle an employer to fairly dismiss an employee.

First – the position of the law

An employee’s misconduct outside of work is not necessarily grounds for dismissal.  The UK equivalent to JACS is ACAS (the Advisory, Conciliation and Arbitration Service).  Guidance on the ACAS website explicitly states that even criminal activity may not, by itself, be a reason for disciplinary action. However, this oversimplifies the situation, as conduct outside the workplace may well be a potentially fair reason to dismiss an employee.

Before taking the decision to dismiss an employee, employers must ensure that they have followed a fair procedure and acted reasonably by treating the misconduct as reason for dismissal.  The tribunal will examine whether the employer had carried out a fair process, for example looking at factors such as whether the employer had carried out a fair investigation or considered other disciplinary sanctions.

Once employers learn of the inappropriate activity they must take a step back and ask themselves:

1. Does it relate to the employee’s employment/role or is it particularly relevant to the employer’s business?
2. Following the misconduct can the employee properly carry out their duties?
3. Does (or could) the misconduct cause damage to the employer’s reputation or business?
4. Does the misconduct pose a risk to colleagues or client relationships?
5. Is a disciplinary sanction, short of dismissal, more appropriate, proportionate, and reasonable?
6. In regulated industries is there an obligation to notify the regulator of the conduct?
7. Do any other regulatory obligations arise?

Serious misconduct

If an employee has been charged with or convicted of a serious or violent crime, the decision-making process may be simpler.  This is on the basis that the conduct would almost certainly have an impact on the employment relationship and/or lead to reputational damage.  (However, this is not a given – to an extent, different standards may apply from one workplace to another.)

Where an employee has committed a crime of dishonesty such as fraud or theft, this may well detrimentally impact on the employment relationship as it calls into question the trustworthiness of the employee. This is particularly so in circumstances when the employee handles money or works in a regulated environment, which will be commonplace for many Jersey employees.

Where a prison sentence is imposed on an employee the employment contract may be “frustrated”.  Contractual frustration occurs where an unforeseen event makes performance of the contract impossible.  This is on the basis that, simply speaking, the employee would not be able to perform their contractual duties whilst incarcerated.  It is important to bear in mind that this example relates to circumstances in which a prison sentence has been imposed by the court – probably many months after a matter first comes to an employer’s attention.

The interplay between the employment relationship and criminal proceedings is often complex – especially when the employee is a regulated individual for example in the financial services or other regulated sector. Where the conduct requires prompt attention, an employer does not need to await the outcome of the criminal prosecution before taking fair and reasonable action, although fairness still requires hearing the employee’s version of events and following a fair process which is suitable to the circumstances.  Where the police are involved, they should not be asked to conduct any investigation on behalf of the employer, nor should they be present at any disciplinary meeting.

Less serious misconduct

What about less serious misconduct?  If an employee was involved in a scuffle in a bar or nightclub over the weekend, whilst not acceptable does it have an impact on the employer relationship and/or their ability to do their job?  Does the legal position change where:

1. another employee was present or involved; or
2. the incident took place at a work event; or
3. the employee is a senior executive of the employer?

The answer is that all the above may be relevant for an employer when determining if disciplinary action up to and including dismissal would be fair.  Rather than having a one size fits all approach the employer needs to assess each situation on its own facts.

We would always advise that contracts of employment and/or the employee handbook set out examples of what the employer would consider to be misconduct and gross misconduct.

Key lessons for employers

Employers should review their policies, procedures, and contracts to ensure they adequately deal with the potential for termination of employment where an employee has been charged with or convicted of an offence.

Activity which may detrimentally impact upon the employer’s reputation or the employee’s ability to perform their contractual duties may require swift action – although we still suggest that you should ‘paws’ for thought.

Advice kindly provided by Chris Hendry of Viberts.