Originally published April 2010
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.
Misconduct and Dismissal
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...