Employees who misbehave outside work may be at risk of facing disciplinary action by the employer despite the actions occurring outside work hours and away from the workplace.

However, an employer may only take action if there is a link between the employee’s behaviour and the employment and/or the workplace.

Consider the following scenario: an employee posts negative comments about the employer’s patrons on a social media website. The comments are derogatory and inconsistent with the values of the employer. As a result, the employer may take appropriate disciplinary action due to the employee’s misconduct. In this scenario there is a clear link between the employee’s misconduct and the workplace.

The employee’s actions must be of the type which has, or has the potential to, negatively impact on the employee’s job or the employer. In deciding whether the employee’s behaviour is linked to the employment, the following questions may be helpful:

  • Have the actions of the employee negatively impacted the employer’s business?
  • Are the employee’s actions compatible with the employee’s role?
  • Has there been any impact on other staff members?
  • Does the necessary trust and confidence between the employer and the employee still exist?

An employer may take disciplinary action on the grounds of serious misconduct if the actions of the employee negatively impact on the reputation of the employer’s business. It is not necessary for the employer to show that there has been actual damage to the employer. The employer must show that there is potential for damage.

As with any disciplinary action taken by the employer, he or she must follow a fair process including the consideration of what response to the employee’s actions is most appropriate. The question is whether the actions of the employer are justified, being what a reasonable and fair employer could do in the circumstances.

Employers should make clear to employees that they may be subject to disciplinary action for conduct outside the workplace. One way of doing so is by including a suitable clause in an employee’s employment agreement.