Kuldeep S. Clair, Consultant Solicitor, offers his views
I have written this article as a result of a story in the news this week about the Chief Medical Officer, Professor Chis Whitty, who was abused and harassed in central London by a couple of drunken young men. Here is a link to the story: https://www.theguardian.com/uk-news/2021/jul/01/man-who-grabbed-chris-whitty-sacked-from-job-as-estate-agent
You will note that the abusers’ conduct bordered on, and almost certainly was, criminal assault. The employment law angle on the story is that a young man in question was dismissed from his employment with an estate agent, soon after this all became public. Actually, it only became public and viral because the lads were daft enough to film their own idiotic behaviour and post it on social media.
So, without dwelling on the unfortunate facts of this case, can such a dismissal for conduct outside the workplace be fair?
Answer: It absolutely can, provided that the employer implements the usual fair procedural principles. Important points:
- being clear as to the reason for the dismissal (e.g. damage to the employer’s reputation can be a good reason). If you act in a very boorish manner in public, which could cause the public to question your suitability for your job (particularly if your job is a customer-facing one), and which does harm the reputation of your employer, that could justify dismissal or disciplinary action.
- the reason is cogent, convincing, and argued in good faith. A tribunal will not just accept an employer’s word about that without some evidence, unless it is very self-evident.
- a breakdown in mutual trust and confidence can be a good reason, but again, only if there is at least some fault on the part of the employee. Again, it cannot just be asserted without evidence. This point relates to my other articles here on fair procedure in employment law.
If the employer is dismissing as a result of the employee being charged or convicted for criminal offences outside the workplace, that can be justifiable, but the need for a fair procedure is paramount. Every case turns on its own facts. On occasions, it has been held that a dismissal has been fair even though the employee was ultimately either not charged, or found not guilty after a criminal trial. This may seem unfair on the employee, but it is a consequence of the fact that the standard of proof in a criminal case is far higher than it is in a civil case.
Before an employment tribunal, the employer must show that it acted reasonably, after a fair investigation, in the light of the facts before it. That is easier than meeting the criminal standard of proof (which is ‘beyond reasonable doubt’).
And finally, it is worth remembering that unfair dismissal is a remedy that is usually only available to employees who have been employed for at least two years, as a result of changes introduced by David Cameron’s government ten years ago.
Solicitor of the Senior Courts of England and Wales
PS – since writing the above article, I heard today that both of the ‘harassers’ of Professor Chis Whitty have actually indeed been charged with the offence of assault, for which they will probably receive a small fine in a Magistrates’ Court, if convicted. A sad and salutary lesson in how not to act foolishly outside work and jeopardise your employment.