Articles

While the UK has previously seen incidents of public disorder, these have tended to be restricted in terms of location. The geographical breadth of the ongoing public disorder that we are seeing in many towns and cities, the number of people involved and the promise from both the government and police that action will be taken against perpetrators (with many individuals arrested and some already sentenced for their involvement) mean that employers may find themselves dealing with unprecedented HR issues and wondering what steps they can take if they become aware that one or more of their employees have been involved.

Can employers take disciplinary action (including dismissal) in respect of an employee's actions outside the workplace?

In short, yes. Conduct outside work can, in some cases, justify dismissal. The key issue is whether the conduct pertains to or affects the employment relationship. Violence outside the workplace can affect the employment relationship. This is often because of concerns about damage to the employer's reputation.

However, even where someone has been investigated for, charged with or convicted of a criminal offence, this does not mean that dismissal (or other disciplinary sanction) should automatically follow. An employer needs to consider the effect the charge or conviction has on the employee's suitability to do the job and their relationship with their employer, work colleagues and customers. There may be a greater impact where the employee in question is senior and/or customer facing and/or is widely or readily identifiable as being connected to the employer and its business.

What considerations should employers take into account? 

Each case is to be determined on its individual facts and organisations should undertake their own investigations. Employers also need to be consistent in their approach. Where a number of employees have been engaged in similar behaviour, employers will need to justify any decision to issue different disciplinary sanctions.

Employers need to consider whether employees have found themselves caught up in something in which they did not intend to become involved. Thousands of individuals have congregated at various locations in recent days. Attendees appear to have comprised various categories of people: 

• Those who attended purely for the purposes of violence and/or inciting hate
• Those who have attended to provide a counter protest to violent activity and/or beliefs which are considered to be offensive.

It is not clear but there may also have been those who wished to "protest" without violence. While other members of society may not agree with their views or the reason for their "protest", violence may not have been their intention and, indeed, they may not have engaged in such activity. Mere presence at a protest will therefore not be sufficient. 

A distinction will need to be drawn, taking into account intentions and activities and consideration will also need to be given to whether employees, in addition to any claims for unfair dismissal, may have potential claims for discrimination (whether on grounds of race, religion or belief or otherwise) in the event that they are dismissed (or subjected to other disciplinary action).

What impact may criminal proceedings have? 

An employer is not obliged to wait for the outcome of any criminal prosecution before deciding whether or not to take disciplinary action. However:

• How quickly proceedings may take place will be a relevant factor as the longer the potential wait, the more reasonable it is likely to be to proceed with disciplinary proceedings
• A decision to bring charges against an employee does not absolve the employer from carrying out its own investigation and conduct an appropriate disciplinary process
• Employers should bear in mind that employees are likely to be advised not to say anything during disciplinary proceedings which may prejudice any threatened or ongoing criminal proceedings and so they will have to make a decision based upon the information which is available to them.

Where an employee is imprisoned, an employer will need to consider whether the employee's job can be kept open or whether it may be possible to argue that the contract has been frustrated (i.e. terminated automatically, without the right to bring an unfair dismissal claim).

What if an employer finds out that an employee has been involved in public disorder but no legal action is taken against them?

Where an employer discovers that an employee has been engaged in public disorder outside work but no legal action is taken against them (and there is no public connection between the employee, their actions and the employer), employers will need to consider whether there may be another reason justifying dismissal, such as a loss of trust and confidence.

What about the role of social media?

Some individuals may have chosen not to attend protests in person but instead to use social media to comment on the protests, the issues raised by the protests and/or to encourage participation or certain behaviour by others.

The prevalence of social media and the fact that it can be easier to find the connection between an employee and their employer (whether because the form of social media forum used itself identifies the connection or because this can be ascertained through a combination with other forms of social media) means that the potential for damage to an employer's reputation can be even more relevant where social media is concerned.

Various police forces have stressed that legal action may be taken in respect of social media posts. Tribunals have also accepted that offensive, non-work-related personal tweets and other social media posts can make a dismissal potentially fair. Employees may therefore not escape disciplinary sanction just because they were not physically present at a protest.

Again, relevant considerations for employers will be the content in question, how senior the employee is, the role they carry out and whether they are readily and widely identifiable as an employee of the business. In this respect, the type of social media used may also be relevant as some forms, such as X (formerly Twitter), might be considered more public (and therefore more damaging) than others, such as Facebook.

Next steps 

Cases involving conduct outside work can be particularly tricky and employers should seek advice accordingly before deciding how to proceed.

It is not known whether the riots and public disorder will continue. A large number of protests took place across the UK on Wednesday night but appear to have been conducted in a calmer manner than previously. Whether this was because of counter protests/demonstrations, action taken by the police to arrest and charge people involved in previous incidents, or because it was mid-week, rather than a weekend, remains to be seen.

While it is to be hoped that this type of behaviour will not continue long-term, employers should consider reviewing their policies and updating these accordingly to provide them with more flexibility and a stronger basis for taking action in the event that this becomes necessary. Consideration could also be given to reminding staff now about your organisation's expectations of them outside of work (including in respect of any comments/posts on social media).