UK: Misconduct Outside Of Work – A Red Card Offence?

Last Updated: 7 November 2019
Article by Harry Abrams

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:

  1. 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?
  2. 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 the employee because of "some other substantial reason".

To satisfy this ground, the employer can argue that there is reputational risk to the business (especially if the misconduct has made the local news) in keeping the employee, or that the misconduct has caused there to be an irreparable breakdown of trust and confidence in the relationship.

The employer will still need to follow a fair process, however, often involving a meeting with the employee to discuss the situation.

In relation to Derby County, they may feel that fines are sufficient reprimand as they can manage any reputational harm through their PR channels, whilst keeping the players onside. After all, a football club's clients (their supporters) are fiercely more loyal than the average company's clients. And perhaps more importantly, the individuals involved are Derby's better players (including their club captain), so the damage to the club may be worse if they terminate the contracts of the players, than if they retain them following the incident.

Are employers liable for damage caused by their employee? Vicarious liability explained.

Outside of what action the employer will take towards the employee, the other concern that employers will have is whether they may be deemed liable for any damage/loss caused by the employee for their behaviour outside of work.

In the Derby County incident, there was damage to several vehicles, as well as personal injury suffered. The law is developing in a way that broadens the scope of when an employer will be vicariously liable for the actions of their employees. It goes without saying that whilst the employee is carrying out their normal day-to-day duties, they will be covered by vicarious liability.

However, case law shows that what is captured by the term "in the course of employment" is widening. In the recent case of Bellman v Northampton Recruitment Limited, the Court of Appeal held an employer liable when the managing partner punched an employee, who consequently suffered a serious brain injury. The employer was held liable despite the incident occurring at a hotel bar after the work Christmas party. The post party drinks were not organised nor paid for by the company, although taxis from the party to the hotel were paid for by the company.

The fact that the managing director was the perpetrator and his role operated "round the clock" led to the decision that the company was liable. I believe that if brought before a Tribunal, Derby County may well be seen as vicariously liable despite the incident happening after a work social – footballers do not having a traditional 9-5 day and therefore the "round the clock" analogy could also be applied to this situation.

In conclusion, whilst employers may have the right to dismiss an employee even if the alleged misconduct occurs outside of work, the downside is that they may well be held liable for such actions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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