Handling concerns about an employee’s conduct outside of the workplace

That was journalist Jon Sopel’s comment on allegations his former colleague Huw Edwards paid for explicit photographs.

Without going into more detail of this dispute, it does raise an interesting question in UK employment law: does an employer have any options to act in response to an employee’s conduct outside of work, even if there are no criminal charges, but there are legitimate concerns?

And how can employers strike a careful balance between an understandable desire to protect their commercial reputation while also respecting people’s privacy and acting within the confines of the law?

Two fair reasons for dismissal that may apply here are ‘conduct’ and “some other substantial reason”.

Misconduct

One reason an employer might dismiss an employee is misconduct.

This misconduct can range from a single act of serious misconduct (usually termed as gross misconduct) or a series of less serious acts. Employers can include unacceptable misconduct examples in their policies.

Importantly, this isn't limited to how people behave at work.

Misconduct outside of work can be a valid reason for dismissal if it somehow affects the employee's ability to perform their job or harms the employer's reputation.

The key issue is whether the conduct in question relates to the employment relationship.

Cases involving sexual conduct or dishonestly, for example, could apply here either because of the nature of the work or because of potential commercial reputational risk.

Real-life examples

Let’s look at a couple of real cases.

In the case of Keable v London Borough of Hammersmith and Fulham, an employee was dismissed for making inappropriate comments at a political rally when they weren’t at work.

While these comments were seen as potentially damaging to the local authority's reputation, the dismissal was ultimately ruled unfair because there was no direct link between the employee's actions and their job. They were eventually reinstated.

In Isherwood v West Midlands Trains Ltd, the employment tribunal held the decision to dismiss for gross misconduct was unfair where Mr Isherwood was dismissed after he did not realise that he was still connected to a call, and he made comments to his wife which were offensive. The reasons for dismissal were it had caused offence to other people, that the comments had breached the employer’s equality, diversity and inclusion policy and had brought the employer into disrepute.

The case of Leach v The Office of Communications (OFCOM) demonstrated that it was fair for the employer to dismiss due to “reputational risks” after his employer discovered he was being investigated for sexually abusing children. He denied the allegations; was never convicted; and the allegations had no direct bearing on his work. He was working for a high-profile public authority.

Criminal offences and employment

There is no rule an employee should be dismissed because they are being investigated for, charged with, or have been convicted of a criminal offence.

Employers need to consider what effect the charge or conviction has on that person’s suitability to do the job and their relationship with their employer, work colleagues and customers.

When dealing with employees under criminal investigation, employers should follow the ACAS Guide to Discipline and Grievances at Work.

They must consider the seriousness of the misconduct and whether it justifies taking disciplinary action, even before any investigation's concluded. The employer does not have to await the outcome of prosecution before taking fair and reasonable action and can rely on information the police have supplied as part of the disciplinary process.

For criminal conduct outside work, the reasonable response will depend on the facts of every case; however, cases of positions of trust involving children or vulnerable adults can warrant a more stringent approach.

Some other substantial reason

The dismissal may be fair if the employer can show it was for some other substantial reason that justifies the dismissal of someone holding the employee’s position. It is a “catch-all” principle.

It’s crucial employers follow a fair procedure. If the employer does establish a potentially fair reason for the dismissal — such as reputational risk — the tribunal will then decide if the employer has acted reasonably.

Final thoughts

While employers have a legitimate interest in safeguarding their reputation and operations, they must also respect their employees' privacy and adhere to legal boundaries.

Well-defined company policies and fair disciplinary processes are crucial for addressing these concerns in a manner that upholds both employee rights and business interests. Ultimately, whether an employer can act will depend on the specific circumstances of each case.

You can catch up with more commentary in our news and views section.