Misconduct outside of work – what can employers do?

Managing misconduct that occurs within the workplace can be challenging. There are legal procedural requirements that must be met and any disciplinary action must be lawfully justified. When the misconduct occurs outside of work, things get even trickier. With the silly season soon upon us and people starting to wind down after a busy year, now is usually the time when bad or impaired judgment starts to arise. The question many employers often ask is whether they can do anything to address employee’s bad behaviour if it did not occur at work but in the employee’s personal life? The short answer is, like most things, it depends on the circumstances. 

The starting point is that employees have the right to privacy and to be able to live their lives as they choose outside of work. However, when bad behaviour in an employee’s personal life can in some way be connected to their job or could impact their employer’s business or reputation, an employer is entitled to get involved and take necessary action. If there is no real link between the misconduct and the employer’s business and the employee has just done something an employer does not approve it, this is unlikely to justify disciplinary action. 

There are a few questions employers must ask when deciding whether they can do anything about misconduct occurring outside of work: 

• Could the misconduct damage the employer’s business or reputation? 
• Is the conduct incompatible with the job the employee does? 
• Does the conduct impact other employees? 
• Could the conduct impact on the employer’s trust and confidence in the employee? 

If after asking these questions an employer can determine there is a link between the employee’s behaviour and their employment, then an employer is entitled to commence a disciplinary process. Like with misconduct that occurs at work, it is important the disciplinary process is fair and follows any prescribed procedural requirements that are set out in either the employee’s employment agreement or employer’s policies.  

Employers must always ensure the process and outcome is fair and reasonable in the circumstances. The specialist employment law team at DTI Lawyers can assist businesses in relation to all employment matters, including advice on disciplinary processes and whether an employer can take action for misconduct occurring outside of work. For any further information on employment law queries, please contact Jaime Lomas – jaime@dtilawyers.co.nz