Gross misconduct in the workplace or during working time is a well-known reason for dismissal. Due to better technology such as smartphones, meaning that employees’ work and private lives are increasingly blurred, and to the rise in popularity of social media, it is no longer the case that employees’ work and personal lives are completely separate. This raises issues as to whether an employer can legitimately take action against an employee for their actions outside the workplace.
The case law shows that it is possible for an employer to fairly dismiss an employee for conduct outside of work. The key issue for employers to consider is whether or not the employee’s misconduct goes to the employment relationship, or affects their ability to do their job.
Sending a personal email to a colleague at home from a personal computer – gross misconduct?
An employer cannot normally take action against its employees for what they do on their own computers at home, provided their activities don’t damage the employer’s reputation.
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But the case of Gosden v Lifeline Project highlights that employees can be disciplined for their private use of email outside the workplace where there is potential for the employer’s reputation to be harmed. Mr Gosden’s employer places employees to work in prisons. He was dismissed for sending a racist and sexist email from his home computer to his colleague’s home computer, outside of working hours. The colleague was employed directly by the prison and as such, was a client of Lifeline Project. The email was headed “It is your duty to pass this on!” The email was forwarded on and eventually reached the prison’s computer system. The Tribunal found that Mr Gosden’s eventual dismissal was fair. It was reasonable for Lifeline Project to consider the forwarding of the offensive email to a client as potentially harmful to its reputation. Mr Gosden had not expressed the email to be private and in fact it was likely to be passed on and to cause harm to Lifeline Project’s reputation with its client. The Tribunal did not focus so much whether or not Mr Gosden intended the email to be passed on; but that he had no control over whether or not it would be, or where it would end up, which was likely to cause harm to his employer in light of the offensive nature of the email.
Making derogatory comments about employer on Facebook which only friends could see
It is particularly evident that an employee’s conduct may damage his employer’s reputation by his use of social media. In the case of Crisp v Apple Retail, the Tribunal found that Mr Crisp was fairly dismissed by the well-known technology brand for making derogatory comments about Apple’s products on Facebook, even though only his personal friends could see the comments. In reaching its decision, the Tribunal considered it relevant that Apple placed a lot of importance on its brand image, stating in its employee policies and training materials that protecting its image was a “core value”, and had highlighted that making derogatory comments in social media was likely to constitute gross misconduct. The Tribunal held that it was also relevant that Mr Crisp had no control over his Facebook page, as he could not control whether his comments would be passed on or shared by others.
Conversely in Whitham v Club 24 the Tribunal found that the dismissal of an employee for making derogatory comments about her employer on Facebook outside working hours was unfair. The Tribunal considered it relevant that the comments were “relatively minor”, and that there was no suggestion or evidence that the employer’s reputation or relationships with clients had been affected as a result of them.
Affects ability to do the job?
In one issue reported in the media, art teacher Joanne Salley resigned from the school where she taught when topless photos of her came to light and were circulated by pupils. An art colleague had asked Ms Salley if she would model for some photographs one weekend. A student discovered the USB stick and shared the photos with other pupils, which presumably made it difficult for Ms Salley to continue teaching there.
Bringing employer into disrepute
The careers of former Cardiff City manager Malcky Mackay and his former colleague Iain Moody are in jeopardy after evidence came to light that the pair had exchanged numerous racist, sexist and homophobic text messages. It is likely that their careers in professional football are over.
Advice to employers
It is clear that an employer can fairly dismiss an employee for their conduct outside the workplace. To ensure that such a dismissal is fair, the employer must of course follow a fair procedure, as with any other dismissal. This will include carrying out a reasonable investigation. It should also avoid a knee-jerk reaction to the misconduct but should establish prior to the dismissal what the consequences of the employee’s actions are; such as damage to its reputation or to its brand, or breach of the employer’s policies.
Disciplinary and equal opportunities policies should give detailed examples of what constitutes gross misconduct and should be tailored to the business of the employer and of its clients where possible and appropriate. Employers should consider adding references to actions on social media in their internal policies.
Emilie Bennetts, Associate, Charles Russell LLP
