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Is an Employee’s Off-Duty Conduct Off-Limits to an Employer?

Generally, an employee’s off-duty conduct is off-limits as far as employers are concerned. Exceptions do exist if there is some relation between the off-duty conduct and your business and if misconduct outside of the workplace poses a risk for your business.

While you can regulate your employees’ behaviour at work, your employees’ off-duty conduct is a different story. When it comes to activities or behaviour employees are engaged while not at work, employers have very limited say. For you to do anything about an employee’s off-duty conduct, there should be some relationship between the conduct and the employee’s job or your business.
To determine whether there is any action that you can take regarding an employee’s lawful off-duty conduct, ask yourself the following questions:

  • Is there a relationship between the off-duty conduct of the employee and the performance of the employee’s job?
  • Does the employee’s off-duty conduct put your business in an unfavorable light with the public?
  • Does the employee’s conduct have the potential to harm your business?

When faced with off-duty conduct situations, it’s important to make the distinction between lawful and unlawful off-duty conduct. If the conduct in question is lawful, you may not be able to do anything about it, and some laws expressly prohibit employers from discriminating against employees for engaging in lawful off-duty conduct. Examples of such conduct would be smoking and participating in protests.

In handling off-duty misconduct, you need to examine the relationship between the employee’s job and the misconduct — is it something that is likely to affect business?

To find out how much of a connection there is between the misconduct and the business, consider the following:

  • The employee’s specific job duties and responsibilities;
  • The employee’s history with the company;
  • The nature of your business;
  • The effect on the customers, the co-workers, and the business’s reputation and;
  • The seriousness and notoriety of the allegations.

If there is a sufficient connection between the job and the allegations, taking some sort of action may be justified.

If you need help and advice regarding off-duty conduct, please do not hesitate to contact me or the employment team on 01133 50 40 30 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here. ony-module.js”

Emma Roberts
Latest posts by Emma Roberts (see all)
Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

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