AIN'T MISBEHAVIN'

Everyone knows that an employee can be dismissed for misconduct committed at work. What is less clear is whether employers can dismiss their employees for bad behaviour outside work. For example, did a local authority act fairly when it dismissed a teacher jailed for firing an air pistol near youths outside her home – an act entirely outside of her work?

What factors might a Tribunal consider when deciding whether a dismissal for out-of-work activities was fair?

In or out?

Firstly, it is worth remembering that even where an act occurs off-site and outside of working hours, it can still be treated as if it occurred in work. For example, an employee who sexually harasses a fellow employee at the office party (or even an informal work gathering) can be disciplined in the normal way.

Unsuitable for the job?

The fact that an employee has been convicted of a criminal offence committed outside work does not necessarily mean that their dismissal would be fair. However, dismissal could be fair if the conviction makes the employee unsuitable to carry on with the sort of work they were doing.

For example, if a finance manager is convicted of credit card fraud or someone whose job involves contact with children is convicted of a sexual offence, it shouldn’t be too difficult for the employer to persuade an Employment Tribunal that its decision to dismiss was reasonable, even if the offences occurred entirely outside of work. On the other hand, dismissing an office-based finance manager for a motoring conviction would almost certainly be unfair as the conviction would appear to have no effect on his/her suitability for the job.

If the particular type of external misconduct renders the employee unsuitable for his current job, the employer should still consider whether the employee might be suitable for an alternative role. A dishonesty offence may render a person unsuitable to be employed as a finance manager - a position of utmost trust and confidence. However, there might still be sufficient trust and confidence to offer the employee a less responsible position where he would be supervised and would not handle cash etc (especially if there were mitigating factors and the employee had not misled or lied to his employer about the external incident).