Can you take action for misconduct in a previous role?

The Football Association has dismissed the women’s England football team manager for misconduct during a previous role. When information comes to light about misconduct in a previous role, can employers take action? The Football Association (FA) received information about misconduct of the team manager during a previous managerial role from 2009-2013. Whilst the nature of the misconduct was not publicly confirmed, the Chief Executive of the FA disclosed that this was “not what we want from an FA employee”. The team manager was dismissed from his role as there were concerns his misconduct would affect the FA’s reputation and he was deemed unsuitable for the role. Generally, unsuitability due to past conduct is uncovered when employers carry out pr-employment checks as part of their recruitment process. This will include where criminal activity is shown on a Disclosure and Barring Service check or where a reference request has revealed misconduct. The employee may even tell you themselves, during an interview, about the reasons why they left their previous employment and this may be due to their conduct. Having this information pre-employment allows employers to make an informed decision about whether the candidate is suitable for the role or not, before making a formal offer. Where the employer later finds out that misconduct has occurred that could affect their continued suitability, as with the FA, employers can take action so long as this is reasonable. Certain factors will affect the reasonableness of taking action, such as the seniority of the employee, the type of misconduct, the profile of the employer and the type of role currently undertaken i.e. have their duties changed so the misconduct won’t affect their suitability to perform this role. Acting reasonably in taking disciplinary action, or even dismissing the employee, will require a full investigation. Where only allegations of misconduct are received this will be even more crucial as reliance on allegations alone will not usually be sufficient to justify action. After carrying out a full investigation, a fair disciplinary procedure must be followed. The question to ask at disciplinary is does the misconduct make the employee unsuitable for their role in this company? This will need a full consideration of all the circumstances, including any facts in the employee’s favour such as a clean disciplinary record, long service and trust. A dismissal for previous misconduct is likely to be on the grounds of “some other substantial reason”. If a claim of unfair dismissal is brought, the employer will have to show that a fair procedure was followed and dismissal was a reasonable response in all the circumstances of this case. Having a knee-jerk dismissal for previous misconduct is likely to fall foul of this test so employers need to proceed cautiously.

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