With the August riots and disturbances (hopefully) well and truly behind us, some employers may be faced with staff who have acted inappropriately outside the workplace. How should they be handled?
When dealing with behaviour which takes place outside work, it will usually be unfair to discipline or dismiss an employee unless the conduct has some material and detrimental impact on either the business or the employee's ability/suitability to do their job. This might be the situation where the behavior results in a criminal conviction involving dishonesty. This conduct may undermine the employer's confidence in the employee and breaches the implied duty of mutual trust and confidence which underpins the employment relationship. Alternatively, the behaviour may have damaged, or is likely to damage, the employer's reputation, for example, by publishing unfavourable comments in a public forum.
There are a number of factors which should be taken into consideration when dealing with bad behaviour outside of the workplace. These include the nature of the employee's job, past service record and whether or not there are any viable alternatives to dismissal. Employers should also consider whether or not they have the contractual right to dismiss an employee, for example, for gross misconduct where acts are committed outside the workplace.
Employers should not simply dismiss an employee because they have been cautioned or charged or indeed, remanded in custody awaiting the outcome of a criminal trial - such a knee jerk reaction is likely to amount to an unfair dismissal. It is important that employer's follow a fair procedure and, where possible, mitigation is properly considered as an alternative to dismissal.
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