As we continue to enjoy an enthralling world cup packed with last minute action, the furore surrounding Suarez’s latest indiscretion will not have gone unnoticed. During the game between Italy and Uruguay, he bit the shoulder of Italian defender Giorgio Chiellini. This is not the first time this kind of thing has happened with Suarez but it does translate into an interesting discussion when considering the misconduct of an employee outside his/her place of work.
Whilst Suarez’s World Cup was brought to an abrupt end following FIFA’s disciplinary action, which resulted in an immediate ban, his employment and indeed his footballing career, if this week’s papers are anything to go by, remain largely unaffected. Of course footballers are, on the whole, an anomaly when it comes to employment law and are treated to some extent as financial assets of the business. However, back in the real world, this poses an interesting question for employers dealing with an allegation of misconduct that takes place outside work.
It is well established that conduct outside work can be relied on for the purposes of establishing a fair dismissal but the question to ask is to what extent? In early cases the key consideration was whether the conduct in question relates to the employment relationship. This would clearly be the case where the misconduct prevents the employee from performing his/her role (in this case Suarez’s ban will prevent him from performing his services for his employer, Liverpool FC). However, it’s perhaps less clear cut where the conduct, whilst unrelated to the employment relationship itself, is considered unacceptable by the employer who wants to instigate disciplinary proceedings.
In one example, an employee was dismissed fairly for fighting off-site with a colleague (there was a long-running dispute between them about a girlfriend). Whilst the fight took place in a car park across the road from the workplace, the employee’s conduct clearly affected working arrangements since the other employee concerned no longer felt safe to attend work. The fact that the dispute involved a purely domestic matter was irrelevant and the EAT agreed with the tribunal that the employee's conduct had completely broken the employer's trust.
Another consideration for any business may be reputational damage, although an employer would still need to demonstrate that there was a genuine and legitimate risk to the business. In the Suarez case, the commercial risk to the club from the loss or potential loss of sponsorship and/or endorsements would be one such example.
With the exponential increase in social media use, the issue of misconduct outside work is likely to find its way to your doorstep sooner rather than later and, when it does, ensure you fully investigate the allegation and what, if any, impact it has on both the employee’s role within the business and the business itself. Only then will you be in a position to decide whether the employee’s actions merit disciplinary action.