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April 2010: Employee behaviour outside work – who cares?

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Human Law Ezine - April 2010

Employee behaviour outside work – does it matter?

Recent news stories involving footballers Ashley Cole and John Terry have raised the issue of when and to what extent the private lives of an employee are relevant to their employment.

On the face of it, Cole and Terry's indiscretions appeared similar, with both having had extra-marital affairs. But their employer, Chelsea Football Club, took a much stricter approach with Cole, whose affair took place during work time - on a club tour to the United States.

Terry's affair, on the other hand, was considered by Chelsea to be a private matter, and therefore did not warrant disciplinary action.

Nevertheless both damaged the image of their employer.

Contracts of Employment often contain express provisions allowing employers to terminate an employee should their conduct outside work bring the employer into disrepute.

However, employers should proceed with caution when classing conduct outside work as a disciplinary offence.

The difficulty for the employer is that disciplinary action taken as a gut reaction to a situation it may seem appropriate, but this is not always lawful.

One of the key issues is that consistency needs to be applied in taking disciplinary action.

It is very easy for an employee in receipt of disciplinary action to portray him or herself as a victim.

The pitfalls of going down the legal route are many, it is highly stressful, expensive and even with quality legal advice you can still trip up. You should consider the following five points:

  1. It is not difficult to get the investigation wrong. It should be carried out by someone who will not conduct any subsequent disciplinary hearing. 

  2.  If you plan to suspend an employee do so cautiously and with full consideration of the consequences. I have seen employers suspend too late or inappropriately, or not all. At all points the decision was flawed.

    A decision to suspend an employee should not be an automatic reaction to a disciplinary issue. The employer should consider whether suspension is appropriate in the circumstances, given the consequences for the employee of being out of the workplace, and the potential damage to the employee's reputation. Thoughtless and unnecessary suspension could be in breach of the implied term of trust and confidence.

  3. At the hearing, the employee should be given an opportunity to respond to all the allegations and be allowed to comment on all the evidence collected.

  4. If misconduct or poor performance is established, a dismissal would usually only be appropriate if there have been prior written warnings. Of course, gross misconduct can justify dismissal for a first offence.

  5. The employee should be given the right to appeal a disciplinary decision. Any appeal should be heard without delay and not by anyone involved in previous stages of the process. The appeal should be heard by someone more senior than the individual who made the disciplinary decision.

An employees' conduct outside work can result in disciplinary action. However, as with all disciplinary proceedings, employers must ensure that any disciplinary action taken is consistent, and a fair process is followed.

What role for mediation in this context?

In my judgment I would be hesitant to apply mediation at the beginning of such a dispute as it can convey a sense of weakness from the employer perspective.

Later on however mediation would be a sensible solution for both parties to avoid the employment problems being communicated to the wider world and to avoiding litigation.

Mediation would be of benefit as:

  • It is "Without Prejudice," as a consequence whatever is said in the mediation cannot be referred to later.
  • It is speedy. The appeal of mediation is that it can be brought in quickly even into the most acrimonious cases.
  • The Mediator can understand the needs of both parties. In the instance of the footballers clearly both the players and the Club do have similar interests. They do not want to damage the reputation of the Club and the Club wants the employees to be happy.
  • The Mediator can help frame a solution which can be sold to the wider public. Once litigation starts it is difficult for the lawyers and employer to start seeing things in a constructive way, and negotiation is difficult.

For advice on any employee conduct issues contact Justin Patten of Human Law Mediation on 0844 800 3249.

Guide to Keeping Away from Court Room Battles and Employment Tribunals

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This guide will help you and fellow management make decisions with more confidence so that time and effort can be put into managing the business instead of managing problems.

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