31 May 2005

Keeble Hawson

http://www.keeblehawson.co.uk

Employee's Private Life

Keeble Hawson Email Update - Dismissal for Conduct Outside of Work

A number of recent high profile cases have highlighted the principle that an employee's private life is not always only their own affair so that inappropriate or criminal conduct outside of work, if relevant to their job or likely to impact adversely on the employer's name and reputation, may  justify dismissal.  However this area is often difficult to grapple with and employers need to be aware of a number of issues to avoid any potential unfair dismissal claims against them.

The case of Linda Walker, the special needs teacher dismissed for gross misconduct from her position after 25 years service following her conviction for affray and possession of a firearm, is just one such case.

The education authority commented that they felt it inappropriate that a teacher with a conviction for a serious firearms offence should be allowed to continue in her role as to do so would send out the "wrong message."  The authority stressed that their primary concern was the safety of the children in their care, and Mrs Walker's behaviour represented a clear breach of professional standards, which brought the authority into disrepute.  An appeal against her dismissal is expected to be backed fully by her union.

Mrs Walker's case can perhaps be classed as an extreme example of the type of conduct outside of work that will inevitably lead to an employer commencing disciplinary proceedings. However there are many other less extreme examples of such conduct which may or may not result in dismissal, and it is this grey area that poses the greatest problem for both employers and the employment tribunal.

So when will conduct become so serious as to justify a dismissal and what are the factors that lead to this conclusion?

The tribunal has provided guidance on the point in a number of cases in which employees have been charged with sexual offences outside the workplace.  The case of Nottinghamshire County Council v Bowly involved the dismissal of a schoolteacher as a result of his conviction for gross indecency.  On appeal the dismissal was held to be fair, the tribunal stating that such cases lie within an 'intermediate area' and therefore as long as the employer  approaches the matter fairly and properly, no criticism can be levelled against them for doing what in their judgement, as a responsible body, was the "just and proper thing to do."  The tribunal also stressed the importance of maintaining professional standards, and in this case the conduct of the teacher had fallen far below that which was required.

The case of X v Y (2003) provides further guidance.  This case involved a Youth Development Worker, also dismissed from his position  after a conviction for gross indecency.  The Court of Appeal ruled that the dismissal was fair, rejecting the Claimant's arguments that his right to respect for private and family life under the Human Rights Act had been breached.

The court stated that no breach had occurred and that the dismissal was a reasonable decision not based on his sexuality but on his conviction and his failure to disclose the same to his employer, and therefore had a direct bearing on his employment with young "vulnerable" people, for whom he was a role model.

There will of course be many other "grey" or "intermediate" cases where the conduct of the employee outside of work would not in the normal course justify a dismissal.  However, employers will be expected to maintain and operate a fair and transparent process of investigation and analysis of the issues before such action. 

Employers should consider the following questions:

• Has the conduct effected the employee's ability to carry out their role / duties?

• Has the conduct damaged or is it likely to damage the reputation of the employer

• Has the conduct fundamentally damaged the employment relationship?  

If the answer is yes to any of the above, then  dismissal may be justified.

So what steps should employers take to avoid unfair dismissals in these circumstances?

• Employers should formulate disciplinary rules setting out what is and what is not acceptable conduct, both at work and outside of work.

• Rules should be communicated to all employees and followed in practice.

• Proper procedures should be adopted should conduct outside of work merit an investigation by the employer, and most importantly the employee must be given an opportunity to answer any allegations.

• Finally, alternatives to dismissal must be considered and explained having assessed in particular both the implications of the conduct in terms of the employee's ability to continue in their present role, and any potential damage to reputation suffered by the employer.

Perhaps the most important point for employers to appreciate is that this area is fraught with difficulties and pitfalls, the best approach therefore is for those considering a dismissal based on such conduct to seek professional advice before doing so.

For information on this or any other employment issues please contact;

Paul Grindley
0113 399 3494
paulgrindley@keeblehawson.co.uk

Nina Sharpe
0114 2906329
ninasharpe@keeblehawson.co.uk 

Pierre Snowden
0114 2906349
pierresnowden@keeblehawson.co.uk

Helena Tattersall
0113 399 3482
helenatattersall@keeblehawson.co.uk

www.keeblehawson.co.uk

All our previous messages can be viewed in the news archive section of our website.

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Our EMU messages are provided for general interest and information only.  While every effort is made to ensure that they provide an accurate statement of the law in England as at the date of their transmission, no liability is accepted for any loss or damage arising from any act or omission resulting from any message.  The messages are not intended to constitute legal advice to any individual or organisation.  If you believe that the content of any message is relevant to you, you are strongly urged to take specific legal advice as every case must be assessed on its own particular facts.

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