Professional misconduct

Managing professional misconduct outside of the workplace

Sharney Randhawa Managing Associate, Employment team

With many employers choosing to switch to a hybrid working model in the wake of Covid-19, the line between work and home life has become increasingly blurred in recent months.

Whilst the advantages of this new way of working are clear to see – increased flexibility for employees and greater staff retention / recruitment appeal for employers, not to mention the improvements in overall productivity and job satisfaction – this shift towards hybrid working has also created a number of new challenges for employers, including how best to supervise and maintain the professional conduct of the workforce when everyone is working from different locations.

Throughout this article, I will explore some common examples of misconduct outside of the workplace and the legal options which are available to both parties if such a situation should arise.

The types of behaviour and activities which could amount to misconduct

Misconduct takes place when an employee’s inappropriate behaviour or action breaks workplace rules. This could include, for example, incidents of bullying, persistent lateness, insubordination and unauthorised absences.

If the behaviour or activity is more serious in nature, and completely undermines the relationship of trust and confidence between employer and employee – for example theft, fraud, violence and gross negligence – this would be considered “gross misconduct.” Generally speaking, an employees’ conduct outside of work is not grounds for dismissal; sometimes even criminal activity may not be enough to justify formal disciplinary action by an employer in and of itself. However, that is not to say that an employee could not face disciplinary action for misconduct outside of work. Ultimately, it will depend on the specific circumstances of the misconduct and the policies or rules laid down by that particular business.

Employers will need to consider whether the misconduct seriously affects the employment relationship, brings the employer’s reputation into disrepute, or impacts on the employee’s ability to do their job.

Examples of behaviour outside the workplace which could be deemed to constitute misconduct could include:-

• inappropriate behaviour at a work function, which reflects badly on the business; • inappropriate use of social media (for example, by publicly criticising their employer or posting controversial statements or images seemingly in the name of the employer); or • a criminal conviction (if the effect of the charge or conviction is thought to affect the employee’s suitability and ability to work and/or impact on the business including it’s reputation)

More recently, it may also be possible for employers to take disciplinary action against an employee for breaching Covid regulations, though, as with any of these examples, it would be necessary for the employer to demonstrate that the employee’s behaviour had a serious impact on the employment relationship (for example, by boasting about breaching the restrictions on social media whilst wearing a branded work uniform).

How to deal with allegations of misconduct

The employer’s perspective – the importance of a fair and proportionate response

There are five circumstances under which an employer can fairly dismiss an employee pursuant to the Employment Rights Act 1996:-

• misconduct • capability • redundancy • statutory illegality • some other substantial reason (SOSR).

In reaching any decision to dismiss, employers should always react in a proportionate and measured manner and ensure that a fair and reasonable procedure is followed, particularly when the employee has over 2 years’ service. This will involve a thorough investigation of the facts, and may include holding a disciplinary hearing.

If an employer finds there has been gross misconduct, they should still carry out a thorough investigation showing the effect on the business, as well as the full disciplinary procedure, even if the outcome of this is ultimately dismissal without notice or payment in lieu of notice.

In situations where the employee’s conduct is less serious it can be more difficult for the employer to demonstrate that this behaviour has had an impact on the employment relationship or the ability of the employee to do their job, even if the behaviour itself is clearly unacceptable. In order for a dismissal or disciplinary action to be fair, employers must consider each situation on its own facts and avoid having a blanket approach to certain conduct.

When looking specifically at behaviour outside the workplace, this is often more uncertain territory for employers which has become even more difficult to navigate with employees working remotely. When an employee is accused of misconduct in the workplace, it is usually clear to employers whether a disciplinary investigation needs to be carried out. However, if an employee is accused of misconduct that has taken place outside the workplace, employers may lack confidence over whether they should, or even have the right to, initiate disciplinary proceedings. To try and avoid this uncertainty or hesitation in the future, we would recommend that all employers carry out an immediate review of their contract of employment and employee handbook to ensure that there is a clear record of what is deemed to be misconduct or gross misconduct and that they are up to date where employers have moved to hybrid working models. A regular review of the business’s code of conduct, social media policy and disciplinary policy should also be carried out to ensure these are up to date, and that all employees are familiar with them.

The employee’s perspective – when allegations of professional misconduct can threaten your entire career

Within a number of professions - teaching, legal, financial, health and social care - employees must adhere to professional codes of conduct. Failure to do so can result in an employee becoming subject to regulatory proceedings.

Professionals working in these sectors need to be made aware of the potentially damaging consequences that an allegation of professional misconduct or wrongdoing can have on their career. Allegations of this kind, which may arise in the course of an employee’s everyday work, can quickly become serious and can be highly detrimental to a person’s career prospects.

The nature of some professional discipline cases means they are highly sensitive. It is therefore the role of specialists to limit the damage and disruption to the reputation of the individual or the business concerned, regardless of the circumstances. Throughout the process, a specialist will always be best placed to represent you and can procure the most favourable outcome possible.

As one of few professional discipline specialists in the region and – having spent some of my career career at a major London law firm where I was exposed to a variety of professional discipline and regulatory cases, assisting on several financial regulatory matters before the Financial Conduct Authority, including the LIBOR investigations – I have witnessed first-hand the pressure that professionals face when dealing with regulatory and disciplinary investigations. Providing both sound legal and practical advice as early as possible can assist with both preparing the case to defend any such allegations as well as going some way to help relieve the pressure and stress faced by individuals during this time.

I also regularly advise clients on a multitude of professional issues before other regulatory bodies, including the General Medical Council, Institute and Faculty of Actuaries and the General Teaching Council.

For further information or guidance on any of the issues covered in this article – or for advice on any other aspects of Employment law, please contact Sharney Randhawa on shr@swinburnemaddison. co.uk or by phone on 0191 3842441.