You're fired: When can employers discipline employees for off duty conduct?

A solicitor and Chelsea football fan has hit the headlines after being dismissed by his employer, an international law firm, after participating in a Youtube video in which he branded Liverpool fans “scouse scum” and “nasty horrible people”. For employers carefully managing their brand, the incident provides a stark reminder that in this day and age, with the power of Youtube and other social media outlets blurring the boundaries of home and working life, a clear message must be given to employees that the employment relationship no longer necessarily stops at the office door or work event and that off duty conduct could have serious implications for an individual’s future employment.

So what happened?

Mr O’Connell, a football fan and corporate lawyer, hit the headlines after his passionate diatribe following Chelsea FC’s 3-1 defeat by Liverpool last month. When leaving the stadium, he came across a news crew filming for the Youtube channel, Neeks Sports. In front of the cameras, he proceeded to defend Chelsea Manager, Jose Mourinho, declaring, “even those Scouse scum idiots, those nasty idiots, know Mourinho is the best manager in the world”. Unfortunately for Mr O’Connell, his employers did not appreciate his staunch devotion to his team and after the video went viral, his partnership with the firm was terminated.

 Should employees be dismissed for acts committed during their “free time”?

The abundance of everyday technology which can record and broadcast an individual’s out of hours activities has created a hazardous environment for employees who act in a way that may be unacceptable to others. Whilst some commentators have agreed that it was right that Mr O’Connell was fired, others suggest that a more sympathetic line should perhaps have been taken as he was recorded in his own time and was not representing the law firm at a work event.

Whilst this case is not the first of its kind, it demonstrates the increasing perils for employees and employers alike posed by advancing technology and agile working practices. Twenty years ago, a rant such as Mr O’Connell’s would have passed unnoticed, an employer likely to remain unaware of any personal opinions or prejudices expressed outside the workplace unless they intruded into the work environment. As it was, Mr O’Connell’s dismissal was subsequently confirmed over social media by the Managing Partner on YouTube.

What should employers do?

Employers finding themselves publically embarrassed by an employee need to pause before acting and avoid a knee-jerk dismissal. The vital question to consider is whether there is a ‘genuine connection’ between the conduct and the employment. Could the conduct in question bring the company’s name into disrepute? Could it affect the employee’s suitability to perform their job?

Key points to consider include:

• What is the employer’s main concern? What is the risk they are seeking to address by taking any proposed course of action? Is there a genuine connection between the employer and the conduct complained of? Here, Mr O’Connell’s employer evidently considered that his actions reflected negatively upon the Firm’s reputation.
• What does the company’s disciplinary policy say? It may include specific provisions prohibiting conduct which could bring the employer into disrepute (whether taking place in or outside of work).
• Check the employee’s contract – the employee may owe specific duties to the company (for example, a duty not to bring the company into disrepute), that have been breached by their conduct, particularly if they hold a senior or management position.  
• Where disciplinary action is taken, employers should follow the procedures set out in the company’s disciplinary policy. Any sanction imposed should be reasonable and proportionate to addressing the issue in question. Where permitted by the policy, or if the employee consents, it may be appropriate to consider reasonable alternatives to dismissal such as demotion or transfer to a new position.
• Make sure that the wider workforce is aware of the standards expected of them. It may be appropriate to reiterate the policy/standards of acceptable behaviour. Care must be taken not to directly or indirectly make an example of the individual who has been disciplined, as this could breach trust and confidence and leave the company vulnerable to a constructive dismissal claim.

If you would like more advice on any of the issues raised in this piece, please do not hesitate to get in touch with a member of the team.