The conduct of an employee outside of working hours

Many employers may not appreciate the extent to which they can be held liable for acts undertaken by an employee outside of work and working hours.  This is known as Vicarious Liability.

In an employment relationship Vicarious Liability operates so as to make an employer liable for the wrongs committed by an employee, where there is a sufficient connection with the employment.  This liability can arise therefore, where the employer has done no wrong. 

In the employment relationship, the emphasis is therefore, whether there is a sufficiently close connection with the wrongdoing such that it can be regarded as in the course of the employment.

The concept of Vicarious Liability was explored in the case of Chief Constable of Lincolnshire Police v Stubbs.  Here the conduct complained of, sexual harassment by a police officer, took place in a pub after work and at a leaving party for a colleague.  The Employment Appeals Tribunal found that both incidents involved social gatherings of police officers and that this was within the course of employment. 

Each case will be fact sensitive, an approach stressed by the Court of Appeal in the case of Sidhu v Aerospace Composite Technology Limited.  In this case, Mr Sidhu was subjected to violence and racial abuse at a family day out organised by his employer.  The Claimant responded by brandishing a chair.  Both Mr Sidhu and his colleague were dismissed.  The Claimant was found to be unfairly dismissed, but in relation to the discrimination act claim it was decided by a majority of the Tribunal that the event had taken place out of work.  Although, the day was organised by the employer the deciding factors were that the event took place at a public theme park rather than at work, it was outside of working hours and most of those attending the event were friends and family and not employees.

The decision of the Employment Tribunal on Vicarious Liability was overturned by the EAT but reinstated by the Court of Appeal.  This alone serves to demonstrate how fact sensitive an individual case may be. 

Given that an employer can be held Vicariously Liable for the employee's conduct it must follow that an employer can in turn discipline employees and in some circumstances, dismiss employees when there is a close nexus between the employee's activities out of work and their role as an employee. 

Such activities could have an adverse effect on colleagues or customers, affect the employee's ability to do their job or bring the business into disrepute. 

Increasingly, such activities relate to misuse of social media.  In the case of Games Retail v Laws a dismissal for non-work related comments posted on a personal Twitter account was deemed to be potentially fair even though the employee's Twitter account did not specifically link him to his employer but where the EAT noted that the Tribunal in the first instance had failed to take account of the public nature of Twitter when finding that the dismissal was unfair.  In any circumstances, a pro-active employer can seek  to impose standards as to what behaviour is acceptable and what is not both in and out of the workplace and working time by reviewing disciplinary procedures and rules, equal opportunities and bullying and harassment policies. 

Posted on: 10/07/2015

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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