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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions