Extract from an article in a magazine about Employment by a Solicitor, who is a specialist in Employment Law in the public sector.
IS YOUR EMPLOYER WATCHING?
It is a common belief that when we are away from the workplace we are no longer accountable to our employer for our actions. This is a misconception. In a world where many of us open our private lives to all via FACEBOOK pages or TWITTER accounts, more and more employees including those working in the public sector are finding themselves in hot water, or even being dismissed for conduct which takes place outside the workplace.
There have been a number of high-profile dismissals reported in the media recently. For example, when it was discovered that a lawyer was the author of an erotic online novel which included photographs of herself in her underwear, she was given the opportunity to stop writing the novel by her employers. When she refused, she was dismissed on the grounds that she was clearly identifiable in the photgraphs and this could damage her reputation and that of her law firm.
Other cases include a police officer whose name appeared on the membership list of the British National Party who was dismissed because his membership of the organisation conflicted with the diverse community that he served; a probation officer working with sex offenders who was dismissed for performing in fetish clubs and selling sado-masochistic products online; and a war cimes investigator who was a Nazi memorabilia enthusiast and commentator. Clearly in all of these cases the outside interests of the employees concerned were incompatible with the nature of their jobs.
Whether you choose to visit fetish clubs or choose to bare all in an erotic novel, to avoid suffering the same fate as the literary lawyer or the performing probation officer, it is always wise to have a general understanding of the code of conduct that applies in your workplace and to know what amounts to gross misconduct and dismissal.
It is worth considering how you could be viewed by work managers and colleagues, as well as the general public, if you take part in certain out-of-work activities. For example, visible attendance or membership of an extreme political group may bring you into conflict with the community you serve and impact on your ability to perform your job.
You may be able to function for a time when using recreational drugs or excessive drinking at the weekend but how long will it be before it affects your ability to maintain fitness levels?
More commonly, employees are caught out by asking their boss and colleagues to be 'friends' on FACEBOOK or to follow them on TWITTER. Such mediums allow colleagues (and bosses) to see what we get up to away from the workplace and even how we feel about the workplace when we are letting off steam to our friends online. These should therefore be approached with caution.
In addition, problems can arise after work at social events with work colleagues. Common problems involve the sexual harassment of a colleague or inappropriate behaviour after consuming too much alcohol any of which could bring you into conflict with your employer.
So what are your rights?
If you find yourself in conflict with your employer due to your out-of-work activities and you have been employed for a period of 12 months or more, you have a right not to be unfairly dismissed. However, your employer can fairly dismiss you if they have fair reason for doing so, acted reasonably in doing so, and followed proper procedures.
Under the Employment Rights Act 1996 there are several prescribed fair reasons for dismissal which include 'conduct, capability', or "some other substantial reason". If your conduct outside work was deemed to be inappropriate, in conflict with your role or damaged your reputation in the community, it is likely that this would be a fair reason for dismissal under the first two terms.
"Some other substantial reason" is a catch all term which an employer can rely upon to dismiss you, provided that they can prove that your conduct detrimentally affects your role at work or their reputation as your employer. For example, in the case of the literary lawyer, whilst she was still capable of performing her job and her conduct was not unlawful, her employer was concerned with the damage to her reputation and subsequently that of the law firm, if clients were able to identify her in the photographs.
An employer faced with such issues will consider the particular role performed by the employee in question, for example, their seniority and visibility and how their conduct impacts on their role at work. A common reason cited by employers in such cases is that there has been an irretrievable breakdown in the working relationship, usually on the grounds of trust and confidence.
Once the reason for dismissal is established, provided that the employer can show the decision was reasonable and fair in all the circumstances and proper procedure was followed, the dismissal will be deemed to be fair.
It is worth noting however that employers must be even handed in their approach to these matters. A dismissal will be unlawful if it amounts to less favourable treatment of an employee on grounds of their sex, race, age, disability, sexual orientation or religion. So if a female officer was dismissed for her conduct away from work, but a male officer who conducted himself in a similar way was not dismissed, she may have grounds for a discrimination claim.
Procedurally, any claim for unfair dismissal or discrimination must be submitted to an Employment Tribunal within three months of the dismissal. Remedies can include reinstatement, re-engagement or compensation.
So, before taking up that new hobby, pledging your allegiance to a particular group or letting the world know how you are feeling, you should always consider your work commitments and whether your action might run the risk of causing conflict with your employer. You could consider running any such ideas past a trusted family member or friend and ask for their objective opinion. If you do take the plunge and come into dispute with your employer always seek legal advice as soon as is practicably possible. On many occasions matters can be resolved without the need for litigation, often with the preservation of the working relationship and most importantly, your job.
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