In the first of two special reports into when conduct outside the workplace might become the business of an employer, resulting in disciplinary or other action, Barry Reynolds and Chris Ryan of DAC Beachcroft examine employee conduct which may be of a criminal nature.
THE law is increasingly called upon to recognise that the interests and obligations arising from the workplace can extend to conduct occurring elsewhere. It remains the case that employees’ work lives and personal lives are separate and the actions of an employee outside of the workplace do not typically ground disciplinary action. This traditional position was summed up in a recent Irish case: “an employer’s jurisdiction over misconduct of an employee ends at the company gate”
However, that is not to say that all actions of employees occurring on their own time are outside the remit of their employer. In some cases, where the conduct is relevant to their role and/or is sufficiently inappropriate or unacceptable, an employer will have no option but to step in in order to protect its other employees, the business itself and its reputation.
In reality, drawing the line between employees’ personal lives and work lives can be an extremely difficult task for employers. Unfortunately for many employers, crossing the boundary from work life to personal life is something that is likely to occur and when this does happen, employers must tread the line very carefully; otherwise, they can expose themselves to a flurry of different claims, including unfair dismissal, discrimination and even breaches of privacy.
This month’s article is the first of two reports in which we take a look at when conduct outside the workplace might become the business of an employer, resulting in disciplinary or other action. This month, our particular focus is on employee conduct which may be of a criminal nature. In the May issue of Retail News, we will consider other aspects of conduct outside the workplace and in particular, in light of ever-growing social media use and, insofar as office staff are concerned, the shift to a dispersed workforce.
Misconduct outside work, disciplinary action and dismissal
The question here is when conduct occurring at places other than the workplace may warrant disciplinary action by the employer and, in some cases, up to dismissal. Leading guidance was provided in the case of Crowe v An Post (UD1153). An employer is entitled to initiate a process under its disciplinary procedures where the employee’s conduct has an adverse impact on the business and where there is a “sufficient connection” between that conduct and the employee’s work. The test for the employer to consider here is whether “the out of work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer’s business”. The Crowe case further highlighted a number of important considerations when seeking to determine whether or not there is such a “sufficient connection”, including:
• Whether the conduct risks bringing the employer into disrepute or causes reputational or other damage to the company;
• Whether the employee’s offences make them unsuitable to continue in their role;
• Whether the employee’s offence causes the employer to genuinely lose trust and confidence in the employee;
• Whether the dismissal is more likely to be “fair” and defensible if the conviction is reported in the media.
The above are not set in stone as a cumulative list but rather considerations of varying importance from case to case. The key question is whether the employer can demonstrate any of the above kinds of likely or actual damage. The onus will be on the employer to show this. In essence then, the employer will have to consider the level to which there is a link between the conduct and the employment relationship and whether or not it leads to a breach of trust or causes reputational or other damage to the company. Otherwise, any ensuing dismissal is likely to be unfair.
Criminal convictions
Criminal charges or convictions affecting employees can raise difficult questions for employers. Certainly, in some cases, a criminal conviction may justify dismissal, particularly if the conviction can be said to be related to the employment relationship. But employers must be aware that this is not always the case. Whether dismissal will be justified really depends on the circumstances. What is the nature of the conviction? Did the employee inform the employer of it and at what stage? Has there been a long interval between the commission of the offence and the employer seeking to address it under its own policies? Is there some nexus between the conviction itself and the employment relationship? Do the conviction and any sentence imposed stand to frustrate the employee’s obligation to be available for work?
A tribunal decision from the 1980s involving a retailer is illustrative in this regard. In that case, an employee broke into another retailer’s premises. The conviction of the employee in that instance was understandably considered to be sufficiently connected to his employment that there was a breach of trust of the employment relationship that warranted dismissal. This was a clear case as it affected another retailer and impacted upon the person’s honesty. If, however, the criminal conduct at issue relates to, for example, a minor assault or altercation, as opposed to theft or dishonesty, the prospects of a retailer standing over disciplinary action could well be reduced. It will depend on all of the circumstances.
Criminal allegations will not always be relevant
Many of the most commonly arising criminal offences may have no bearing at all on the employment relationship. For instance, it is common for employers to set out in employment contracts that convictions for serious crimes are a ground for summary termination, but certain other crimes (e.g. for minor road traffic offences or similar violations), especially where no custodial sentence is imposed, do not present such grounds. Even with such contractual clauses, an employer must approach the issue with an open mind and apply its processes fully and fairly.
Criminal allegations may give risk to an inability to perform the role
Convictions can, on occasion, give rise to the loss or suspension of a driving licence, or other kind of permit which is essential for a particular role. This may warrant termination for some specific categories of staff. However, this will always depend on all of the circumstances and such potential terminations may not rely so much on misconduct as on the inability of the employee to continue carrying out their role. A recent High Court case considered an employee who was refused renewal of his airport identification card – which he needed for this role - as a result of having been charged with (but not found guilty of) drug possession. He was no longer able to fully perform all aspects of his role and was for that reason placed on unpaid leave and ultimately he was dismissed for the same reason i.e. it was not by reason of the criminal charge in itself. The terms of the employment contract and the employer’s policies will be key in such circumstances.
Candidates
It is worth considering the position of job candidates as well as employees. Many employers formally enquire of candidates if they have any convictions. This can be with a view to potentially vacating the hiring process (or if they succeed in that process, terminating the employment relationship) if it transpires that they have convictions.
There is no general legal mechanism for conducting criminal background checks, save for certain limited exceptions. Many convictions would not, of course, have any bearing on many kinds of role. These internal rules may entitle an employer to take action against an employee and the enquiries made at recruitment and the provisions of any related policy should be checked to ensure they are comprehensive and clear.
Specific protections may be triggered
It is also worth noting that, while there is not currently any such statutory protection, it is possible that in the future it will be unlawful to discriminate on the grounds of a candidate or employee having a criminal conviction. The Irish Human Rights and Equality Commission has already recommended, as recently as in January this year, that this prohibition be introduced.
Some activities, to include drug use, may also, in some exceptional cases, trigger disability discrimination considerations under Equality legislation. At the same time, in limited circumstances, such conduct may render the person unsuitable for the role they occupy. It will certainly not always be the case.
It may be difficult to hold and complete a proper internal process
Employers may find themselves unable to effectively apply their internal policies in circumstances in which an employee is accused, but not convicted, of a crime. The employee may be entitled to rely on their constitutional privilege against self-incrimination and defensibly refuse to engage in any internal enquiry or process. This will not always mean that the employer cannot invoke its internal procedures, but it is easy to see how such matters can become complex and hard to manage.
Employers must remember that where an internal process is invoked, that it is carried out fairly. An employee who commits a serious crime, potentially tarnishing an employer’s reputation and resulting in a breakdown of trust, is still entitled to natural justice and fair procedures in the context of disciplinary procedures. Otherwise, that process will be ultimately flawed and any dismissal will be exposed to scrutiny by an employment tribunal. If you have any queries or require any assistance in relation to any of the above, please contact Barry Reynolds or Chris Ryan.
About the authors
BARRY Reynolds (breynolds@ dacbeachcroft.com) and Chris Ryan (chryan@dacbeachcroft.com) of DAC Beachcroft are specialists in employment law. This article is for general information purposes only and does not comprise legal or professional advice. You should not rely on any of the material in this article without seeking appropriate legal advice.
Twitter: @dacbeachcroft LinkedIn: DAC Beachcroft Dublin
