With the approaching exodus of British football fans to Portugal this summer for Euro 2004, employers should consider where they stand when it comes to their employees’ behaviour out of the office. Paula Cole, Partner with Beachcroft Wansbroughs’ national Employment practice summarises the extent to which employers can penalise an employee’s actions out of the workplace.
It is not automatically fair to dismiss an employee if they are convicted of a criminal offence outside of work. Employers should remember that they still have to go through a fair procedure.
Tribunals have to interpret the unfair dismissal legislation in the light of the Human Rights Act, Article 8, which sets out an individual’s right to respect for his private and family life. This is particularly relevant for public employers and local authorities as the Human Rights Act is directly applicable to them.
Even though anybody engaging in football hooliganism in Portugal this summer will be conducting it in their own time, employers may still be entitled to dismiss an employee, particularly if it is found that their behaviour is in the public arena.
Caught on the job
Employers may also have a case if an employee’s conduct impacts on their ability to carry out their job, or in some way significantly affects the employer’s business or undermines the employer’s confidence in them as employees. This is particularly important if the employee is convicted of assault or other aggressive behaviour and the nature of their work involves contact with members of the public and other employees.
Fanning the flames
The media has its own role to play. If the press undertakes a ‘name and shame’ campaign, as it did during the 1998 World Cup in France, this serves only to make the employee’s behaviour all the more ‘public’.
So what practical steps should employers take when preparing for Euro 2004?
Make employees aware of the consequences of their actions, in that the employer will consider disciplinary action against all employees bringing the business into disrepute through football hooliganism.
Make sure your disciplinary procedure is up to date and clear before employees set off for Portugal.
Ensure that your intranet, notice boards or other forms of communication are up to date, in this respect.
Observe data protection and human rights legislation as you consider employees’ personal circumstances and seek to verify suspicions.
Post Office v Liddiard
In the case of Post Office v Liddiard , Liddiard, who was a Royal Mail sorter, was convicted of assaulting a police officer during the World Cup in France in 1998. The Post Office dismissed him for bringing the company into disrepute.
The employment tribunal found that the Royal Mail had not dismissed him fairly because it had been influenced by the press outcry against football hooliganism and comments from the Prime Minister. The matter was subsequently appealed. The Court of Appeal upheld the Post Office’s appeal and sent the case back for rehearing before a different tribunal.
Pay v Lancashire Probation Service
The Human Rights Act was considered in a recent case of Pay v Lancashire Probation Service . This case has some analogies with football hooliganism, in that Mr Pay was involved in activities that were unacceptable to his employer. These included performing in fetish clubs and merchandising bondage, domination and sado-masochism activities in his spare time.
The Probation Service took the view that those activities were incompatible with his role of responsibilities as a probation officer and were particularly inappropriate having regard to his work with sex offenders.
The employment tribunal found that Mr Pay had not been dismissed unfairly and the Employment Appeal Tribunal upheld this decision. It found that the employment tribunal was entitled to hold that Mr Pay’s right to respect for his private life under Article 8 had not been infringed because his activities were publicised on the Internet and promoted in public places.