Misconduct Outside Of Work – A Red Card Offence?

Football club Derby County have fined two players 6 weeks' wages after they were caught drink driving after a work social event.

Particularly as we approach Christmas party season, our employer clients often ask what the position is when employees misbehave either outside of working hours (ie on the weekend) or outside of the office but still within the working relationship (ie work drinks).

Such incidents raise two main issues:

Can you still dismiss (for misconduct or otherwise) the employee, despite the alleged action not happening within the working day or at the employer's premises? Is the employer liable for the acts of the employee? Misconduct outside of work - how is it dealt with?

The general rule is that an employee can be disciplined for conduct that takes place outside of work if it "pertains to the employment relationship". In other words, if an employee physically attacks a colleague at drinks outside of working hours, for example, this could be seen as sufficient to justify a dismissal. Not only that, if the victim no longer feels safe at work after the incident, this would increase the likelihood of it pertaining, or relating, to the employment relationship.

Whether misconduct "pertains" to the employment relationship or not will vary depending on the nature of the misconduct and also the nature of the job. For example, if the role is one where trust plays a key role (such as an in-house accountant) and the alleged misconduct is theft, then it is more likely to pertain to the employment relationship.

There's no need to wait until criminal proceedings have been finalised for an employer to take disciplinary action. In fact, the criminal threshold is significantly higher than of that in the employment sphere. These situations can, therefore, often lead to a fair dismissal but no criminal sanctions against the individual. In this specific example, Derby County were able to first handle their players' misconduct internally, prior to the police and criminal courts dealing with the driving offences. The players involved have then since been ordered to carry out 180 hours of unpaid work, given a 12-month community order and banned from driving for two years.

Is the misconduct itself the only reason for dismissal?

Even if an employer does not believe that the misconduct is sufficient to justify a dismissal for misconduct, or that it does not sufficiently pertain to the employment relationship, it may still be able to fairly dismiss...