Employee conduct outside the workplace: what can an employer do if there are problems?
It’s likely you will have seen the recent news reports about an employee of Savills’ Estate Agency being accused of posting racist tweets after the Euro 2020 final. The company has responded by suspending the employee and investigating the matter, including the employee’s claim that his account was hacked.
To what extent should employee conduct outside the workplace be your concern?
This illustrates a situation that every employer needs to be prepared for in case it ever arises; namely, knowing at what point to become involved if an employee’s conduct outside the workplace is not what it would deem acceptable. In this example, social media has made an already complicated situation more difficult. Even if an offending post is deleted, it’s often after a screenshot has been taken which means it’s there to potentially be viewed by hundreds if not thousands of people. But this is not only a social media-related problem. There might be an occasion when an employee does something else that would be regarded as inappropriate by a company. But if it’s not in working time, or when acting as a representative of the business, an employer might struggle to know how they should react. And that is why, as we’ll go on to explain, there is a real need for clarity about what is and isn’t acceptable from an employer’s perspective.
If the conduct is directed towards someone at your company, get involved
There will be some cases when it’s relatively clear cut. One of those times regarding employee conduct outside the workplace will be if offensive comments, whether online or not, are deliberately directed towards someone at, or associated with, your company because it’s highly likely that would be a form of harassment. Even if the perpetrator later goes on to say the comments were “made in jest”, the bottom line is it’s still not acceptable. (There’s more here explaining why so-called called ‘banter’ is often not okay and is actually a form of harassment.)
But it doesn’t need to be targeting someone by name…
It doesn’t however have to be deliberately aimed at someone to cause upset and constitute a form of harassment. If comments made outside work face to face, online or via messaging apps for example are heard or seen by someone else at your company and cause offence, that can be enough for them to make a complaint. There’s still significant potential for those comments to affect another employee’s ability to carry out their role, and create a difficult working environment for them to be in. As such, your company will need to become involved and follow it up via the appropriate procedure.
Could the employee’s actions bring your company into disrepute?
What if the actions are not aimed at, or cause offence to, anyone in the company but it’s absolutely not something you’d want associated with your business? If an employee’s conduct could potentially have damaging consequences for your company and its reputation, it’s reasonable for you to react to protect legitimate business interests. In those circumstances, you can consider taking appropriate disciplinary action against an employee who acts in what you believe to be an unacceptable way, online or otherwise.
There can be grey areas about what is and what isn’t acceptable though – which is another reason why employers need to take proactive steps to provide clarity.
Can your company be held responsible for employee conduct outside the workplace?
Essentially, this can be a risk in any situation where the act is carried out ‘in the course of employment’ – which isn’t always as straightforward to establish as you might initially think. This has the potential to include situations like informal after-work get-togethers and company events outside working hours. Alternatively, if comments are made on something like an online work forum or group chat set up by your company for work purposes, your company could be at risk of being found to be vicariously liable (in other words, held responsible for the employee’s actions) even if the comments are made outside working hours.
So what can you do to reduce the risks?
Clearly there’s a fine line here. Employees do have the right to the freedom of expression and to a private family life too. And organisations want their employees to feel there’s trust between them. If employees believe there’s excessive monitoring or intrusion taking place, that could breach that trust which could have all kinds of negative consequences – even including a constructive dismissal claim if it was completely unjustified.
But equally, the implied duty of mutual trust and confidence cuts both ways. Employers are within their rights to highlight the kind of behaviour that could damage the relationship from their perspective too. Companies need to be reasonable and equitable in the way they approach this. That can be helped by clearly explaining to employees what their obligations are, and the action that could be taken if they overstep the mark.
Do you have a social media policy regarding employee conduct outside the workplace?
Clearly, no employer is in the position where they should, or would want to, continually monitor their employees’ personal accounts. But employees must be clear about what’s expected from them when posting on social media. Employees need to be mindful that everything they put on social media is in the public domain – screenshots can still be taken even with privacy settings on or just before posts are deleted – therefore it’s appropriate to remind employees of this fact. It’s also wise to remind them of the tendency that everyone has to say things online that they would be less likely to say face to face – and the fact that if those comments go too far, it could have consequences.
If an employee’s posts or profile directly link them with your business, there must be an extra level of discretion used. Some employees might think that adding a disclaimer along the lines of “these views are all my own” might cover them sufficiently but legally that kind of phrasing will not mean your business is automatically completely free of any form of liability. Or they might believe that by not mentioning their connection with you as their employer in any way, it’s ok to say what they want. But that’s not the case and they must be made aware of the need to be careful.
Make sure all other related policies and procedures set out what’s required
All related policies, procedures and company rules must reflect what is and isn’t ok, cross-referencing one another where applicable. Ensure you’re covering all bases: policies and processes relating to issues including harassment, discrimination, grievances, equal opportunities, bullying and also data protection should reflect the fact that an appropriate level of disciplinary action will be taken if necessary if an employee’s conduct breaches them in any way either in or outside their working hours.
And finally, communicate all of this clearly. Employees should be made aware upfront of what’s expected via company handbooks, contracts and induction processes. But then they should also be reminded periodically through appropriate training and other internal communication processes such as briefings and team meetings.
Do you need our help?
If you think your company might need to do more to manage the risks connected with employees’ conduct outside working hours then don’t hesitate to talk to us. We are very flexible in the way our HR services can be accessed to give you maximum choice over the best way to get the support you need. If you’d like to have a chat with us to find out more then please call 01455 231982, or send us a message and we’ll be in touch.