A recent Employment Appeals Tribunal (EAT) case has thrown into the spotlight the options open to an employer when an employee receives a criminal conviction for misconduct outside the work place.* In this case, the EAT found the dismissal to be fair. However the factors taken into account by the EAT highlight that a "one size fits all approach" cannot be applied to such cases. These cases will turn on their own particular facts and as such it is difficult to predict whether a dismissal will ultimately be upheld.

Background
The claimant was absent from work on long-term sick leave when he received a suspended sentence for the sale and supply of drugs. When his employer found out, he was dismissed for gross misconduct and breach of trust. The key issue which the EAT had to consider was whether the dismissal could be justified given that the events took place away from the claimant's place of work.

Decision
The EAT noted that there is considerable uncertainty as to whether an employee's conviction for a crime committed outside the workplace entitles the employer to dismiss the employee. The argument usually relied upon by the employer is that the bond of trust has broken down.

The EAT held that a dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employee's work, in such a way that it would make the employee unsuitable or capable of damaging the employer's reputation. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to the business, employee relations or affects the reputation of the company. According to the EAT "the test is :has the out of work conduct of the employee impacted adversely or is capable of impacting adversely on the employer' business?" If it has, the employer may institute disciplinary proceedings. Whether the sanction of dismissal can subsequently be applied ultimately depends on the particular circumstances of the case. The EAT was satisfied that there was a sufficient connection here which led to a breach of trust and caused reputational damage.

In its determination, it distinguished the earlier case of Marvin Moore v. Tesco Ireland Limited (UD 2924/2011), where the claimant was unfairly dismissed and awarded €11,500 (the facts of the case were somewhat similar concerning a conviction for the sale and supply of drugs). The differentiating factor was that there was no publication in the Moore case of the conviction, whereas here there was prominent publication. This was not however the only determining factor. It was also influenced by the fact that the employer had not given sufficient consideration in the Moore case to alternative sanctions and the significant unblemished record of the employee.

Although it isn’t dealt with in this case, the position is different (and arguably more straightforward) if an employee is actually imprisoned. Dismissal is generally a safer outcome in respect of imprisonment as an employee is no longer capable of performing his or her contractual duties and employer can rely on the argument that the contract has in effect been frustrated. There is a body of case law in both Ireland and England to the effect that a contract of employment is frustrated when an employee is sentenced to prison. The Courts have analysed such a dismissal in a number of different ways – firstly that the contract of employment is frustrated to the extent that the contract of employment no longer exists and the employment is automatically terminated, secondly that the employee's conduct has repudiated the contract and the employer is therefore entitled to dismiss the employee, and thirdly that the imposition of a custodial sentence would satisfy the "some other substantial reason" criteria under the Unfair Dismissals Acts.

Comment
The takeaway from the case is that if there is to be a dismissal for out of work misconduct, there must be a genuine connection between the employee's offence and his employment. The connection must be such that it leads to a breach of trust and/or causes reputational and other damage to the company. In the instant case, the EAT was satisfied that the claimant's conduct had destroyed the relationship of trust and caused reputational damage. As such, the dismissal was fair and reasonable in all the circumstances.