Employees are entitled to their private lives but, on occasions, their conduct outside of work can have a direct impact on the working relationship.
In recent weeks, the Black Lives Matter movement has sparked a number of instances whereby those who have shared potentially offensive or racist views online or in public have been ‘outed’ to their employer.
The issue of whether these individuals should be fired from their jobs has been the subject of intense debate, with some arguing that this infringes on freedom of speech and others having adopted the mantra “if you’re racist and you’re fired, that’s your fault”.
Perhaps the most publicised case is that of Jake Hepple – the Burnley fan who recently had his employment terminated after he arranged for a ‘White Lives Matter’ banner to be flown over the Etihad stadium. Despite the 24-year-old insisting that the provocative stunt was not a racist act, his employer, Paradigm Precision, condemned Mr Hepple’s behaviour, saying they “do not condone or tolerate racism in any form”. Police have since determined that no criminal offences were committed.
The case has divided opinion and, like similar cases before it including the Danny Baker debacle, it raises an important question: to what extent can an employer control or comment on employees’ activities outside of working hours?
In this article, we explore the legal position underpinning situations of this nature.
Can employees be disciplined or dismissed for conduct outside of work?
This will largely depend on the facts of each case, but the crucial question is whether the employee’s actions outside of work have affected their ability to do the job they were employed to do. While an employer might not ‘approve’ of the employee’s extra-curricular activities, if their actions are totally unconnected to their job and have no impact on it at all, it will be difficult for the employer to use its code of conduct or disciplinary policy to issue any sanctions in relation to them.
However, if there are reasons to believe that an employee’s ability to do their job is affected, out-of-work activities might give the employer ‘some other substantial reason’ to dismiss. This is a sort of catch-all category which employers may be able to rely on if none of the other potentially reasons for dismissal (capability or performance concerns, work-related misconduct, redundancy or a breach of statutory duty) apply. For example, if relations with colleagues, suppliers or customers are adversely affected, or if the business itself has been brought into disrepute, as was the suggestion here, dismissal may be justified.
Is social media to blame?
Social media, whether posts on Facebook, tweets or blogs on any platform, has in recent years blurred the dividing line between work and the outside interests of employees. Even actions that occur outside of social media often make their way online and can in many cases be traced back to the employer given many employees are ‘connected’ to colleagues and/or identify where they work in the ‘About Me’ section of their social media profiles. Because of this, actions or posts that go viral and provoke backlash can very quickly become attached to the employer, and inaction can be seen as ‘co-signing’ their views or behaviours.
We have seen this happen many times in recent weeks, not just in this case – where #ParadigmPrecision briefly trended on Twitter due to the company being listed as Mr Hepple’s employer on his Facebook profile – but in the case of other viral videos where people have been recorded making racist remarks and/or acting in a discriminatory way. In some cases, an employee’s transgressions can have damaging consequences, leading to contracts being pulled or sponsorship/funding being withdrawn.
How will unfair dismissal cases regarding conduct outside of work be dealt with in court?
When evaluating claims for unfair dismissal, an Employment Tribunal will consider a number of factors, including the employer’s internal investigation and whether the decision to dismiss was reasonable in all of the circumstances.
Each case will turn on its facts; however, in order to justify dismissal, the employer must be able to demonstrate:
- That it conducted a fair investigation (in this case, Paradigm Precision stated that it had conducted an investigation into Mr Hepple’s conduct in the incident in question as well as other related matters and “concluded that there has been a breach of the company’s various policies and procedures”, though we don’t have any further details regarding the investigation itself).
- That it considered all other avenues to dismissal, i.e. less severe sanctions that could have been applied that would have had the same effect.
- Why a dismissal on these particular facts was fair, i.e. that there was an objectively rational basis for believing that not dismissing the person would put the company at genuine risk of reputational damage.
The onus for establishing these facts rests with the employer.
What can employers do to strengthen their position?
As an employer, you can never have absolute control over what goes on outside of work hours; however, there are a number of practical steps that can be taken to reduce the likelihood of such incidents occurring and protect your business should you find yourself in a similar situation.
- Draw up a code of conduct that sets out the standards and behaviours you expect of your employees. This can include respecting others and upholding the company’s values, and you can specify what these values are.
- Have a social media policy that meets your needs and manage social media within your workplace. Set out guidelines and best practice for your employees, making clear what is and is not acceptable. This will ensure that employees know the rules and will also help to protect your business from potential liability and criticism at a later date. You could state that employees are not allowed to: post pictures of themselves/others at work or wearing a uniform; express personal opinions about the company or reveal any details about the operations/performance of the company online or to others; make defamatory comments about the company, its managers or directors, or their colleagues, or indeed say anything that could be considered to be bullying or harassment. Set out what the consequences of a failure to comply will be, e.g. disciplinary action that could result in warnings or dismissal
- Update your disciplinary policy. Social media is still relatively new, and if you haven’t updated your policies in a while, this is a timely reminder to do so as you might find that there’s nothing within your existing policy that covers online content. It is worth remembering that one size does not always fit all, so while you should be consistent in how the rules are applied, you will need to assess each case on its own facts.
With potentially disastrous consequences should an employee’s conduct attract negative attention towards your organisation, implementing these measures now may save a lot of time and difficulty later on.
James Tamm
Director of Legal Services
Expert Comment
Some people may be surprised in this case that Mr Hepple was dismissed, especially as the police found no criminal case to answer. However, the fact that there was no crime doesn’t mean that the workplace or co-workers haven’t been adversely impacted, which is the real question for the employer and the Tribunal. In addition, we don’t know the full background of the case. An employee’s length of service and past disciplinary record will be key to determining a reasonable level of sanction and that information is not widely known in this particular instance.
Facing a similar situation?
Mismanaged dismissals can invite a whole host of issues and are often not as straightforward as employers might hope. As well as the need to follow a fair process, situations can be further complicated by factors such as potential discrimination, whistleblowing, or the misconduct having been committed outside of work – so it’s always safest to seek advice.
