ACAS guidance indicates that even criminal activity is not normally by itself a reason for disciplinary action. However, conduct outside the workplace may well be a fair reason to dismiss an employee. Employers will need to carefully consider the whether the conduct or activity would have an impact of the employee’s suitability to do the job, whether it impacts their relationship with their colleagues, clients or customers, and whether the conduct could result in reputational damage to the business. In reaching any decision to dismiss, employers will need to establish that they followed a fair procedure and that they acted reasonably by treating the conduct as a reason for dismissal (such as “some other substantial reason” or “misconduct”).
In situations where an employee has been charged or convicted with a serious or violent crime, the decision making process when taking disciplinary action may be fairly straight forward as the conduct would almost certainly have an impact on the employment relationship, or cause reputational damage.
Similarly, if an employee was found to have committed theft, this could certainly impact on the employment relationship as it calls into question the trustworthiness of the employee. This is even more significant in circumstances when the employee handles money or accounts, or if they work in a regulated environment.
A custodial sentence may also “frustrate” the employment contract, as simply speaking, the employee would not be able to do their job if they are in prison.
What happens if the conduct is a little less serious? If an employee is reported to have had a scuffle in a bar over the weekend, then whilst this behaviour is not acceptable, could it really have an impact on the employer relationship or the ability of the employee to do their job? Does the situation change if the “scuffle” occurred with another employee present (or involved), or during an alcohol- fuelled work event? What if the employee was a senior executive or “the face” of the business? In order for a dismissal or disciplinary action to be fair, rather than having a blanket approach to certain conduct, the employer must consider each situation on its own facts.
Having said that, it is best practice for the contract of employment and/or the employee handbook to clearly stipulate what the employer deems misconduct or gross misconduct.
