What are the rules around dismissing staff for activity outside of work that brings their company into disrepute?

Most will be aware of the recent incident in which a football fan was caught on camera allegedly subjecting an opposition player to racial abuse during a Premier League match. Speaking after the incident, the fan admitted that he had been dismissed from his job which raises the question of what action employers can take against staff for behaviour that occurs outside of work.

In order for an employer to validly claim that the employee’s actions brought the company into disrepute an employee will generally have to participate in conduct that damages the reputation of the company amongst, clients, customers or the general public. Common examples of this behaviour include criminal activity or negative posts made in relation to the company on social media.
Many employers will include an express provision within employment contracts enabling them to terminate employment should an individual’s conduct outside of work bring the company into disrepute. It is also common to make note of this within existing policies on discipline and social media usage as this will give employers further scope to dismiss.

Whilst the football fan’s alleged misconduct was captured on television, this is unlikely to be a common occurrence. Instead incidents are more likely to occur online, with individuals posting disparaging remarks or confidential information, or at work related social events such as ‘after work drinks’.

If employers suspect an individual’s actions have brought the company into disrepute they should refrain from making an immediate decision to dismiss and instead carry out a full investigation. For the investigation employers should look to gather sufficient evidence, which may be easy to find if it relates to comments made online, or take statements from individuals who were witness to any alleged misconduct. The individual in question should also be allowed an opportunity to review the evidence and offer a response to the allegations levelled against them.

In some situations, it may be appropriate to suspend the individual pending an investigation if their continued presence could cause significant disruption in the workplace or jeopardise the integrity of the investigation. However, employers should only do so if it is appropriate under the circumstances. It is important to consider the potential damage to the employee’s reputation if they are later found to be innocent, as unnecessary suspension could be in breach of the implied term of trust and confidence of the employment relationship.

When coming to a decision employers need to take into account the severity of the incident and the realistic impact this is likely to have on their organisation. For example, whilst employers may not be happy with negative comments made about them online, an employment tribunal will not look fondly on those who dismiss staff for comments that are mildly offensive. The employee’s position within the organisation should also factor into the decision, as usually the more senior the individual, the greater impact their misconduct is going to have on the organisation’s reputation.

Providing employers are confident that the individual’s actions will have a considerable negative impact on their organisation they may proceed with dismissal. When informing the employee, it is important to explain how their actions have brought the company into the disrepute, whilst still giving them the right to appeal should they wish to bring any additional evidence to light in favour of their case.

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