It’s commonplace that outside of work employees relax their demeanour, whether that be with friends or family. However, there are those whose actions outside of work may, whilst not being illegal, verge on foolish and irresponsible from time to time.
Situations in which this may be the case could include, for example, having an expletive-laden argument with someone who’s pushed in the queue at a supermarket, or crossed words with someone whilst playing in a football match.
Whilst in years gone by, situations like this would have quickly been forgotten, in a world of smartphones and social media, the click of a button can turn a frank exchange between two people into a social media storm.
So, what can employers do if they see or are alerted to footage of a member of staff acting foolishly on camera?
While the rules around dealing with employees who have committed criminal activity are clearer, how they deal with ‘foolish’ behaviour can be a lot trickier.
Nonetheless, case law has established that misconduct occurring outside of the workplace can be considered a fair reason for dismissal, if the behaviour has sufficient impact on the employer’s interests or the employment relationship. This would include, for example, if the employee’s actions impact the reputation of the company. So, taking the example of an expletive-ridden filmed argument in a supermarket, if the individual involved is recognisable as being part of a particular company (e.g. they are wearing a company lanyard or polo shirt), this could cause reputational damage to the business and so the employer may be able to fairly dismiss the employee.
Of course, that’s not to say employees are not allowed a fun and enjoyable life outside of the workplace. In fact, employees have the right to a private life and freedom of expression under Article 8 and 10 of the Human Rights Act 1998. However, these rights are qualified, not absolute, and tribunals will balance them against the employer’s legitimate interests, particularly for reputational protection when assessing reasonableness.
So, what should employers do when they are alerted to footage of an employee acting inappropriately?
- Review the footage - Consider what is said and/or done and the severity of it, as well as whether there is anything that links them to the company.
- Discuss footage with those involved - Speak to the employee involved to find out the context behind what happened, allowing them the opportunity to explain themselves and their actions.
- Be impartial - Failure to ensure impartiality in instances of internal investigations, or the suggestion of pre-judgment can result in the entire process, whether a disciplinary or grievance, being deemed unfair. As such, employers should ensure that, when investigating any footage of employees acting irresponsibly, they do not allow their personal opinions of the employee in question to cloud their judgement.
- Take your time - An investigation can be a long process which often requires a lot of time and attention to reach an outcome. If employers try to rush through the process, they may find themselves open to unfair dismissal claims, which can incur sizeable financial penalties.
- Make sure everything is documented - Documenting a workplace investigation is essential for legal compliance. It also helps to ensure fairness and transparency in the process, preserves evidence, and provides a factual record of events. Documentation should include, amongst other things, timelines of events (including meetings and decisions, etc.), evidence from individuals (such as witness statements), and a record of actions taken during the process.
It’s important to remind employees that even outside of work they may still be representing their employer, and that in the world of smartphones and social media their actions and behaviours may come to the attention of those they work for.
This article has been written alongside Angela Kumari.