Dismissals Outside of Employment

The employee is caught on CCTV in the centre of town absolutely "out of his face" hurling a rock through a local food store. Is this an act of misconduct leading to potential dismissal? The employer is seeking blood, the local reporter has been seen trying to get a new angle on the story. The question, can I be rid of this employee? The answer – "Well maybe it all depends …"

Whilst most employees may believe that what they do in their own time is their business and nothing to do with their employer, this is not entirely true. There are a number of situations that can lead to an employee's external conduct leading to a potential fair dismissal.

The first is where the employee commits an offence, which then leads to a sanction that either prevents the employee being able to work or not being able to fulfil their normal employment functions. This can occur where an employee is sentenced to a fairly lengthy term of imprisonment. It may be where they lose their driving licence and driving is an integral part of their employment.

Increasingly there is also the impact that a criminal record, for even a comparatively minor offence, may have in relation to their particular type of employment. This is especially true for people working in those sectors governed by the Licensing Act where a criminal offence may result in the loss of a personal licence or where the person works in the security sector and has to be licensed by the Security Industry Association (SIA). Certain criminal offences committed outside of work would prevent people working in the care sector.

Less clear cut are those areas that can fall under the umbrella dismissal provision in the Employment Rights Act for "some other substantial reason". This can occur in relation to a criminal offence preventing work in a particular area where no other type of work exists. It may also be relevant in relation to misconduct that is likely to damage the employer's reputation, which may happen in the case where our employee has thrown a rock through a store window. This is especially so where a third party can link the employee's actions to the employer, clearly a press report in a local newspaper may be such a link.

Potential damage may result in a fair dismissal even where the employee is not convicted of any offence. It could also be the case that an employee's actions outside of work impact on the working relationship with their work colleagues to the point where they refuse to work with the offender. This may again be a reason for a fair dismissal.

The problem for the employer is that the cases depend very much upon their own particular facts and there is no hard and fast rule as to how a Tribunal will view a particular set of facts.

An employer should ensure that the Company disciplinary rules cover situations arising outside of employment that could give rise to potential grounds for dismissal. An employee forewarned is much easier to discipline fairly. This is especially so where an employee works in a particular sector where special situations can arise that may affect continued employment. Employers need to review their procedures and policies to ensure that they are fully compliant and that employees are well aware of the potential outcomes if they break the rules whether in employment or outside where it affects continued employment.

Alan Hunt - Qdos Consulting Ltd

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Posted 08/08/06

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