Although obviously business owners are generally more concerned about dealing with behavioural problems within working hours and in the actual workplace, sometimes boundaries can be blurred and problem behaviour from outside working time can become an issue for an employer.
When can you act?
For you to take any kind of action in relation to external behaviour, the behaviour needs to relate to work. This can clearly be a loose definition as it will depend on the individual circumstances and role. The impact on work might be because of the nature of the person’s role, or it might be because it involved work colleagues (albeit outside working hours). But if it will or is having a negative impact on work, you can consider disciplinary action.
Criminal offences, the burden of proof
If not related to work, criminal convictions in themselves are not reason for disciplinary action; however the burden of proof is not the same as a criminal court. If you feel you need to discipline someone in respect of a criminal offence outside the workplace, you don’t need to prove beyond reasonable doubt that the person was guilty, you need to have a genuine and reasonable belief that the person committed the offence and have conducted an adequately thorough investigation.
What about gross misconduct?
Obviously being convicted of any criminal offence is a very serious matter. However even a criminal conviction does not automatically mean you can dismiss someone for gross misconduct if the offence related to something that took place outside the workplace. You need to consider how the criminal conviction impacts on the person’s ability to do their job.
For example if someone is convicted of theft and spends their days at work handling money, or is convicted of driving while under the influence of alcohol or drugs and is responsible for the safety of others at work, a dismissal for gross misconduct is more likely to be a reasonable response. A loss of trust and confidence or bringing the organisation into disrepute can also be fair reasons to dismiss someone. Those types of considerations are more likely to happen with senior staff, or possibly if the event was newsworthy and had an impact on your business through negative publicity.
One of the most common external behaviours resulting in disciplinary action is social media conduct. Dismissals and disciplinary warnings after being indiscreet, derogatory or offensive on social media are not at all uncommon, even if these activities take place outside work hours. Sometimes it’s not the social media postings themselves that are the problem, it’s social media revealing other behavioural concerns, such as false claims of ill health or conflicts of interest.
Although social media-related disciplinaries/dismissals are common, they are certainly not straightforward or problem-free. If you feel someone’s social media activity outside work has, or could have, a negative impact on their role or on the organisation, it is far easier to address it (or hopefully prevent issues arising in the first place) if you have a clear social media policy in place first, ensuring that staff are clear on acceptable standards of social media behaviour.
Just as with any disciplinary or dismissal issue, it’s essential you follow a fair process, using your disciplinary procedure, and are consistent in your application of any sanction.
If you are currently experiencing a problem with employees’ behaviour and need some help please contact us