We look at misconduct in and outside the workplace in general..…..
Your Christmas Party is normally pretty lively and good fun, but employers need to consider various factors beforehand, so there are no problems (yawn – but bear with us!).
[Article updated for 2017]
Unfortunately, because of various pieces of legislation, employers need to have a policy in place setting out the standards of acceptable behaviour for their workers at the Christmas Party (or at last explain this clearly to staff beforehand).
This is because:
- Employers can be held liable for harm (under health and safety laws) or harassment caused to or by their employees, or for negligent acts of their employees.
- Employers have a responsibility for their staff’s actions, even outside normal working hours or outside of the normal working environment. Any social event organised by the employer is an ‘extension’ of the workplace – regardless of the place or time of the event
- You could fall foul of religious and possibly sexual discrimination laws. Since October 2010 the Equality Act continues to give protection from sexual harassment but now also gives protection to harassment on the basis of disability, age, gender reassignment, race/religion or belief and sexual orientation.
Two pieces of recent case law emphasise the pitfalls and problems that a work party can bring.
In Gimson v Display by Design Ltd, Mr Gimson was walking home with colleagues after their work Christmas party. Gimson had a disagreement with one of his colleagues (Kyle) and then punched another colleague (Davey) in the face (causing him serious injury), who was trying to stop the situation.
The employer summarily dismissed Gimson for gross misconduct after its disciplinary investigation discovered there was no provocation. Gimson claimed unfair dismissal, saying the incident was not misconduct because it happened outside the course of his employment, and that he had received inconsistent treatment because his colleagues involved in the incident were treated more favourably (Kyle received a final written warning, and Davey was not disciplined at all).
The Tribunal found that the employer had a genuine belief that Gimson assaulted a colleague after a work event; it had reasonable grounds for the belief; and that it had carried out as much investigation as was reasonable in the circumstances. The Tribunal found that the employer has reasonably concluded that the events after work were sufficiently closely connected to work to have had an impact on the working situation – it was as a result of the party that Gimson and some colleagues were walking home together; this created the situation that resulted in the assault, which would have impacted on the working environment of the small company.
The Tribunal also found that Gimson’s treatment was not inconsistent because:
- No evidence of provocation was found
- Mr Davey was the ‘peacemaker’ trying to stop the situation
- Mr Gimson had not accepted that his conduct was unacceptable and had not show any remorse
- Kyle was apologetic and had not hit anyone.
In Bhara v Ikea Ltd, Mr Bhara was involved in organising the Christmas Party. He was a ‘well-regarded’ employee and did not start drinking at the party until 10pm, when he had finished his hosting duties. At 11.30pm, Bhara warned a colleague, Mr Sutton, not to drink too much as he was working the next day. Mr Sutton reacted angrily and a “tussle” ensued.
The employer investigated this incident and both the men played down the “wrestling match” – Bhara saying it was a “play fight” and Sutton saying it was “mates having a laugh”. The employer dismissed Bhara eventually, as there was a delay caused by Bhara raising a grievance about the way it was being handled. The employer’s reason for dismissal was that Bhara was guilty of “physical assault” that had “a damaging effect on the Ikea brand and brought the company into disrepute”.
Bhara claimed unfair dismissal and the Employment Tribunal – although finding that some aspects of the employer’s handling of the case could have been better – found that the employer’s actions were not outside the range of reasonable responses available. There had been an extensive investigation and they had reasonable belief in the misconduct – this justified dismissal. The employer was entitled to treat fighting with a colleague as a “matter of utmost seriousness” even if there was no “lasting hard feelings” between Bhara and Sutton.
The case found that an employer is not obliged to dismissed in these circumstances, but dismissal is an option open to the employer in this situation.
The simple steps that an employer can take to minimise the risks to your business to stop things getting out of hand at the Christmas Party are:
- Designate a Manager to stay alcohol-free so they can keep an eye out for any unacceptable or potentially dangerous behaviour
- Limit the free bar (to try to prevent accidents, fights, any incidents that might be seen as harassment)
- Consider how your staff will get home safely, if you can
- Consider the needs of all of your staff – will mothers be able to arrange childcare at the time of your party; will members of some faiths be able to make the day of your party; ensure there is food to meet all employees’ religious and cultural requirements; ensure there are non-alcoholic drinks available; consider if you need to provide any physical assistance for any disabled staff
- Before the party remind your staff of behaviour that is not acceptable and how this will be dealt with – that the normal disciplinary procedures will apply in the event of any incident (in the least kill-joy way possible!)
- Remind staff that you expect them to come into work on time the next day!
And have fun!
Personality conflicts/misconduct in the workplace –
An important case, Perkin v St George’s Healthcare NHS Trust, found that a competent but abrasive executive could potentially be fairly dismissed because of his manner. Perkin’s behaviour justified his dismissal, even though the dismissal was procedurally unfair (so he was not awarded any compensation).
In 2015, the Court of Appeal, in Graham v Commercial Bodyworks Ltd, found that an employer should not be held liable for injuries caused to one employee when a ‘prank’ went wrong at work. Two workers were joking about when one set fire to the other, causing serious injury. The injured employee claimed that his employer was liable to compensate him for injuries caused by the other employee. The Court reviewed the law on an employer’s liabilty for their employees’ acts of violence and said that “froliscsome but reckless conduct” would not normally be said to have occured in the course of employment, so it was inappropriate to impose liability on the employer.
Generally it is established that Employers can avoid liability for practical jokes in the workplace if they can show that the employees who were joking were acting on a “frolic of their own“, by e.g. doing something totally unconnected with their work.
In Adamson v Mitchells & Butlers Retail Ltd, a Manager’s behaviour undermined the employer’s trust and confidence in him to such an extent that it warranted summary dismissal. Adamson was the Pub Manager of one of the Employers flagship venues and was recorded on CCTV being pushed around in a wheelie bin by a female worker. He fell out the bin, damaged a door and embraced the worker. Although the Manager admitted that “it was a ridiculously stupid act” the Employment Tribunal found that this dismissal was fair because the Employer had lost all trust and confidence in him to do his job.
However, in Otomewo v Carphone Warehouse Ltd, the employment tribunal found that an employer was liable for their employees behaviour. A heterosexual manager had his phone taken without his permission by two members of staff; they updated his Facebook status to say “Finally came out of the closet. I am gay and I am proud”, although they knew he was not gay. The Tribunal upheld the Manager’s sexual orientation discrimination claim, saying the Employer could be liable for the entries made on Facebook – it had been done during working hours, at work, and involved dealings between staff and their Manager.
Can you dismiss fairly after a request from a third party?
In environments where Employers have to win and retain clients (through their satisfaction with the service you provide), what happens if an important client has an objection to a member of your staff delivering the service to them (whether their objection is warranted or not)? Can you dismiss the employee fairly?
- What if your contract with the client allows them to request removal of the employee? And you have no other job available for the employee to do? In Scott Packing v Warehousing Co Ltd v Paterson in 1978, the Employment Appeal Tribunal said this was a fair dismissal as “An employer cannot be held to have acted unreasonably if he bows to the demands of his best customer…. even if the customer’s motive for seeking the removal of the employee was suspect”.
- In Dobie v Burns International Security Services Ltd in 1984, the Court said that for a dismissal to be fair the Employer who receives a request to remove an employee must consider whether there is any “injustice” to the employee and to what extent. The Employment Appeal Tribunal said the employee’s length of service and whether they had ever been any previous issues with the employee should be taken into account, and also how easily the employee would find other employment if they were dismissed.
- Later cases have said that even if there is injustice to the employee a dismissal can still be fair if the Employer has taken steps to avoid or mitigate the injustice, e.g. by trying to get the 3rd party to change their mind or looking for other work for the employee. In Henderson v Connect (South Tyneside) Ltd in 2009 the EAT said the employer would be expected “to pull out all the stops” to try to mitigate against the injustice.
Misconduct outside the workplace –
Dismissal in Criminal Cases.
An important case, The Post Office v Liddiard, where the Court of Appeal found that it was relevant to consider whether or not the employee’s conduct outside of work had brought the employer into disrepute. Liddiard was convicted of assaulting a French police officer during a football World Cup tournament and was identified by a national newspaper. He was consequently dismissed for bringing the Post Office into disrepute. The Employment Appeal Tribunal overturned the Employment Tribunal’s decision and said that this was a fair dismissal.
If someone has commited a criminal offence outside of work, what does an Employer do? An employer is entitled to dismiss an employee who commits an act of misconduct, however a criminal conviction is not necessarily misconduct in the employment relationship. Acas say that “If an employee is charged with, or convicted of, a criminal offence this is not normally in itself a reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitablity to do the job and their relationship with their employer, work colleagues and customers”. Therefore employers need to consider if the criminal conduct is relevant to the employee’s work; if there is a risk to the Employer’s reputation; is there a breakdwon in relations between the employee and colleague; could the employee continue in their job if safeguards were put in place? If the employee has received a custodial sentence, then often their employment will be terminated automatically as the employee can no longer perform their work, called ‘frustration’. But be careful about the length of sentence given – if it is for only a short period of time, then the contract may not be ‘frustrated’
What if an employee is charged with a criminal offence but then later on is not actually convicted, and in the meantime you have dismissed them? Whether the dismissal will be fair is dependant upon whether you, the employer, reasonably believes after your own investigation that he/she is guilty or there has been enormous damage to your reputation because of his/her actions (the first may be dismissal without notice and the second dismissal with notice under SOSR). Clearly your own investigation will not be easy if there is a criminal prosecution under way as the police will not/should not provide you with evidence. But you need to form a reasoned and independant view of your employees guilt, not take a quick reaction to a police enquiry or charge alone, by dismissing straight away.
In Kuehne & Nagel Ltd v Cosgrove, a warehouse operative was dismissed following a positive drugs test. The Company’s substance abuse policy said that a positive test for illegal substances would be classified as gross misconduct. The claimant admitted to using cannabis outside of work but had never been under the influence of cannabis at work. The Employment Tribunal found that this was unfair dismissal, but the Employment Appeal Tribunal disagreed and said the correct test for the fairness of dismissals for misconduct was whether the Employer actually believed that the employee was guilty of misconduct and whether they had reasonable grounds on which to base that belief and had carried out as much investigation as was reasonable.
Dismissal for an employee smelling of alcohol at work was unfair – in McElroy v Cambridgeshire Community Services 2015 the dismissal of an employee for coming to work smelling of alcohol was unfair, because the policy required that an employee could be dismissed for gross misconduct if they were “unfit for duty” and there had been no evidence of that.
Guilty by Association – In Symes v The Pepperbox Nursery Ltd in 2011, the Employment Tribunal agreed that the Employer was justified in dismissing an employee whose husband had been charged with child pornography, as it was necessary to protect the nursery’s reputation.
If an Employer thinks an employee is “guilty by association” because of their relationship with someone outside of work, what can they do? (e.g. an employee is in a relationship with someone with extreme views, or they ‘keep’ unsavoury company on Facebook) –
- consider your main concern – reputation, loss of a client, a health and safety concern?
- how serious is the breach? Assess any evidence of damage (actual v potential)
- Check Company Policies and the Employment Contract
- How senior is the employee? Ordinary staff have an obligation to act with trust and loyalty to their employer; Senior staff may have higher obligations
- Is the employee ‘at fault’ for the association – did they initiate it or did it happen by chance? Could they have done anything to prevent the association?
- Listen to the employee.
In late 2014, the Government published guidance on The Childcare (Disqualification) Regulations (that have been in place since 2009), highlighting that the Regulations apply to Schools providing early years childcare. This requires educational institutions to consider suspending employees who live with someone who has a conviction for a violent or sexual crime (called disqualification by association).
Taking a Sickie –
In Ajaj v Metroline West Limited in 2016, the Employment Appeal Tribunal decided that “pulling a sickie” when not actually ill can amount to dishonesty and misprepresentation warranting dismissal on the grounds of gross misconduct. Mr Ajaj, a bus driver, suffered an injury at work and his Occupational Health department deemed him not fit to work for some time. Metroline were worried about the genuineness and extent of his injuries and placed him under covert surveillance. He was dismissed on the grounds that he made a false claim for sick pay and had misrepresented his ability to attend work and he had made a false claim of an injury at work. The original Tribunal found he had been unfairly dismissed as Metroline had no reasonable grounds for belief and the investigation was not reasonable. The EAT disagreed saying the Employer did have a genuine and reasonable belief based on a reasonable investigation that Mr Ajaj had attempt to commit fraud or at least exaggerate his symptons. The Judge said “An employee who “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship”.
Drug Testing in the Workplace –
While drug testing in the workplace was traditionally limited to roles where safety was critical, reports have suggested that workplace drug testing is on the increase. Companies have a statutory duty to ensure a safe working environment for their staff, although many would argue that drug testing may not indicate whether an employee’s ability to do their job (or their conduct or behaviour) is affected if they take drugs.
Currently Employer’s must have a a member of staff’s consent to test them for drugs (often included in the contract of employment or staff handbook, but also an employer can ask an employee to take a drug test where they have a reason to suspect the employee is under the influence of drugs). Employers need to consider what their definition of drug abuse is (illegal substances, misuse of prescription drugs or medicines, legal highs) and how to operate any drug-testing system – will you have a ‘zero’ tolerance’ or ‘cut-off-‘ approach, e.g. if an individual has drugs in their system, if this is under a certain level will it be ignored?
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
Photo by Sam Howzit