When does employee conduct outside the workplace become an employer's concern?

More often than not, an employee’s conduct outside of work is not something an employer needs concern themselves with, unless it directly and adversely impacts the workplace. But could an employer have grounds to take action against an employee for breaching Covid regulations outside the workplace, or might this risk accusations of unfair dismissal? 

An employer can fairly dismiss an employee if it has one of the five potentially fair reasons for doing so, as set out under the Employment Rights Act 1996. One of these reasons is ‘some other substantial reason’ (SOSR) for which there is no statutory definition or guidance, though the reason must be substantial and justifiable. SOSR may apply if the actions of an employee present an unacceptable risk to the business in terms of reputational damage, and is more likely to be relevant if the employee holds a senior position within the company. 

While it is difficult to manage an employee’s activities outside of work, it is possible in theory for an employer to take disciplinary action against an employee for breaching Covid regulations outside the workplace. An employee’s actions could be considered misconduct if there is a genuine connection to the employment relationship; it prevents the employee from completing their designated duties, or; poses a demonstrable risk to the organisation’s reputation. This could include, for example, an employee being named in the media for breaching Covid regulations, or even posting a blatant breach on social media, through which the employer can be identified.

But when do social media posts become an employer's business?

The proliferation of social media makes it easier for employees to engage (knowingly or otherwise) in unacceptable conduct and, at the same time, make it more difficult to identify where such misconduct has occurred in the ‘course of employment’. 

The appropriate course of action for misconduct outside the workplace will always depend on the facts of the case. In the event of criminal activity, consideration needs to be given as to what effect any charge or conviction might have on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers. When it comes to incidents involving social media, the platform used in the course of the misconduct may even impact the action taken. For example, where messages are public it is more likely to be considered a reputational risk to an employer than a site closed to a private group of just friends and family. Where an employee has named their employer and is readily identifiable from the posts then this may more legitimise any disciplinary action up to and including dismissal, as seen in the case of Preece v JD Wetherspoons plc.

Ultimately, there could be grounds for a conduct dismissal if an employee does something outside of work that impacts employer trust and confidence, and criminal behaviours (including Covid regulation breaches) are likely to fall within that definition. However, actions falling short of criminal conduct require a proportionate and measured response and relying upon a claim of ‘reputational damage’ will not be enough unless a business can demonstrate lost business, client or customer complaints, or press negativity as a direct result of the employees actions. While third party pressure, for example from a client, might encourage an employer to go down the SOSR route, it is rare for these dismissals to be recommended by employment lawyers as they can be risky and hard to prove.

To minimise risk of reputational harm and help protect themselves against any exposure to vicarious liability, employers should regularly review their code of conduct, social media policy and disciplinary policy to ensure these are up-to-date, extensive, and well-communicated to all employees.

This article was first published by People Management.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.