The conduct of an employee outside of working hours

Many employers may notappreciate the extent to which they can be held liable for actsundertaken by an employee outside of work and working hours. This is known as Vicarious Liability.

In an employment relationshipVicarious Liability operates so as to make an employer liable forthe wrongs committed by an employee, where there is a sufficientconnection with the employment. This liability can arisetherefore, where the employer has done no wrong.

In the employmentrelationship, the emphasis is therefore, whether there is asufficiently close connection with the wrongdoing such that it canbe regarded as in the course of the employment.

The concept of VicariousLiability was explored in the case of Chief Constable ofLincolnshire Police v Stubbs. Here the conductcomplained of, sexual harassment by a police officer, took place ina pub after work and at a leaving party for a colleague. TheEmployment Appeals Tribunal found that both incidents involvedsocial gatherings of police officers and that this was within thecourse of employment.

Each case will be factsensitive, an approach stressed by the Court of Appeal in the caseof Sidhu v Aerospace Composite Technology Limited. In this case, Mr Sidhu was subjected to violence and racial abuseat a family day out organised by his employer. The Claimantresponded by brandishing a chair. Both Mr Sidhu and hiscolleague were dismissed. The Claimant was found to beunfairly dismissed, but in relation to the discrimination act claimit was decided by a majority of the Tribunal that the event hadtaken place out of work. Although, the day was organised bythe employer the deciding factors were that the event took place ata public theme park rather than at work, it was outside of workinghours and most of those attending the event were friends and familyand not employees.

The decision of the EmploymentTribunal on Vicarious Liability was overturned by the EAT butreinstated by the Court of Appeal. This alone serves todemonstrate how fact sensitive an individual case maybe.

Given that an employer can beheld Vicariously Liable for the employee's conduct it must followthat an employer can in turn discipline employees and in somecircumstances, dismiss employees when there is a close nexusbetween the employee's activities out of work and their role as anemployee.

Such activities could have anadverse effect on colleagues or customers, affect the employee'sability to do their job or bring the business intodisrepute.

Increasingly, such activitiesrelate to misuse of social media. In the case of GamesRetail v Laws a dismissal for non-work related comments postedon a personal Twitter account was deemed to be potentially faireven though the employee's Twitter account did not specificallylink him to his employer but where the EAT noted that the Tribunalin the first instance had failed to take account of the publicnature of Twitter when finding that the dismissal was unfair. In any circumstances, a pro-active employer can seek toimpose standards as to what behaviour is acceptable and what is notboth in and out of the workplace and working time by reviewingdisciplinary procedures and rules, equal opportunities and bullyingand harassment policies.

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.