Dealing with misconduct in the workplace is, unfortunately, an issue that most employers will have to address at one stage or another. Increasingly, however, employers find themselves in situations where they wish to (or are required to) address misconduct that occurs outside the hours and place of employment. Employers who find themselves in such a situation ought to proceed with caution as dealing with such misconduct is often more complex than dealing with misconduct in the workplace.

Where an employee is being disciplined for misconduct outside of work, the misconduct ought generally be of a type which reflects in some fashion upon the employer/employee relationship. Generally speaking there should be some direct connection between the misbehaviour and the workplace or employment relationship. Whether such a connection exists will have to be decided on a case by case basis.

Case law in recent years has determined that an employer can be held liable for an incident that takes places at a work-related social event where the circumstances are sufficiently connected with the claimant's work. In the case of Graham v Portroe Stevedores [UD 574/2006], the employer was directed to pay a sum of €154,772 to the Claimant who was dismissed from his employment following an altercation with a more junior member of staff at the office Christmas party.

An allegation of inter-employee bullying or harassment outside of work is likely to require disciplinary action on the part of the employer. On the other hand, a speeding conviction outside of work may not warrant disciplinary action unless perhaps the conviction affects the employee's ability to do his job.

Whether the dismissal of an employee for a criminal charge or conviction unrelated to the employment is justified will depend upon the circumstances, and, in particular, upon whether the criminal act renders the employee untrustworthy to continue in his or her particular employment.

A conviction for criminal assault may justify dismissal in some cases but it did not in a case where the employee was a cleaner who, it was held, did not occupy a position of special trust. In another case where a Garda Sergeant was assaulted by an employee of a company outside working hours, the employer had difficulty establishing that the criminal conduct affected the employment relationship between the parties. In that case, the Court was influenced by the fact that (i) the employer only became aware of the assault some time after the event and (ii) that the assault was not of a "very serious" nature and the employee had no previous involvement with the Gardai.

In the case of Emma Kiernan v A Wear Limited [UD643/2007], an employee posted derogatory comments about her manager on the BEBO website and was dismissed from her employment for this reason. The Employment Appeals Tribunal held that the employer acted disproportionately in dismissing the claimant and that while the employer's disciplinary procedures were fair and proper, its sanction was not. The Tribunal also held that while the Claimant's comments deserved strong censure and possible disciplinary action, they did not constitute gross misconduct in the circumstances. However, the Tribunal found that the comments made by the claimant concerning her supervisor were disrespectful, inappropriate and damaging to the employment relationship and to that extent the claimant's contribution to her dismissal was not insignificant. Accordingly, the Tribunal awarded the claimant €4,000 under the Unfair Dismissals Acts.

In dealing with any allegation of misconduct, it is important that employers are aware of their responsibilities and obligations which, as set out in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (Statutory Instrument No. 146 of 2000) include that:

1. details of any allegations or complaints are put to the employee concerned;
   
   
2. the employee concerned is given the opportunity to respond fully to any such allegations or complaints;
   
   
3. the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and
   
   
4. the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and other relevant or appropriate evidence, factors or circumstances.

Where the employer forms the view that the misconduct outside work warrants disciplinary action, it should take care to ensure that it deals with the matter in accordance with its disciplinary/grievance procedure and that it comply with the principles of fair procedures and natural justice. The Unfair Dismissals Acts impose an obligation upon all employers to provide employees with written notice of the employer's disciplinary procedure. It follows that all employers are required to have a written disciplinary/grievance procedure in place. If the employer has no written disciplinary/grievance procedure it should apply the procedure set out in Statutory Instrument No. 146 of 2000 referred to above.

Disciplinary action is a serious matter from the perspective of both the employer and the employee. At the end of the day (particularly where the disciplinary action results in dismissal) the employer may find itself in a situation where it is required to justify its decision to discipline its employee and to establish that it had substantial grounds for taking the disciplinary action in question. The employer should proceed with caution and take care to ensure that the conclusion it reaches, as a result of the disciplinary action taken, is a reasonable one in all of the circumstances.

For further information please contact Aoife Bradley.

April 2010.