Dismssed for acts committed outside the Workplace

Can an Employee be dismissed for Acts Committed outside the Workplace?

Yes, an employee in Ireland can be dismissed for actions outside the workplace, but only if there’s a strong connection (nexus) between the misconduct and their job, proving it damages the employer’s business, reputation, or the trust essential for the employment relationship. Dismissal isn’t automatic; the employer must show the conduct affects business needs (e.g., criminal conviction for a role involving vulnerable people) and follow fair disciplinary procedures. 

When Dismissal Might Be Justified

• Damage to Reputation: If off-duty actions (like online posts or criminal behavior) become public and harm the company’s image, especially for roles with client/public contact.
• Loss of Trust/Confidence: If the conduct demonstrates dishonesty or unreliability, breaking the fundamental bond needed for the job.
• Impact on Work Performance/Safety: If the misconduct makes the employee unsuitable to perform their duties or endangers others.
• Specific Role Requirements: Certain jobs (e.g., working with children, finance) have higher standards, so related misconduct is more likely to justify dismissal. 

When Dismissal May Be Unfair

• No Connection: Minor offences (e.g., a traffic violation) with no link to the job or business.
• Private Life: Actions that don’t affect work or the employer’s legitimate interests.
• Lack of Fair Procedure: Failing to investigate properly, allowing the employee to respond, or not considering warnings first. 

Key Principle: The “Nexus” Test
The core test is whether the off-duty conduct creates a legitimate interest for the employer, meaning a demonstrable link (nexus) to the company’s business or operational requirements. 

In Summary: An employer must prove the off-duty act creates a real, unavoidable problem for the business, not just a personal dislike, and must follow fair disciplinary rules, or the dismissal risks being ruled an Unfair Dismissal. 

Disciplinary hearings and grievance procedure compliance is essential for employers and managers within employment law. It is important to ensure that the necessary procedures that is place, and that it has been issued to and signed off by all employees, in order to guarantee that you can correctly manage disciplinary issues in the workplace.

Current employment law legislation provides that all employees should have received and signed off on the company disciplinary and grievance procedure within 28 days of commencement of employment.

Having a formal procedure in place will remove any ambiguity or accusations of unfair treatment as, when correctly applied, a disciplinary and grievance procedure allows for all employees to receive the same treatment if a disciplinary issue arises.

Fair Procedures

Section 6 (7) of the Unfair Dismissal Act states that in determining whether the dismissal is fair or unfair it has regard to:

(A) The reasonableness or otherwise of the conduct of the employer in relation to the dismissal, and

(B) the extent, if any, of the compliance or failure in comply with the employer in relation to the employee to the disciplinary procedures or the provisions of the Code of Practice on Disciplinary and Grievance Procedures (Industrial Relations Act 1990) (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.

As the employers own disciplinary procedures may be more extensive than the procedures in the Code of Practice, it will be looked to first.

The Rules of Natural Justice for Disciplinary Hearings

Employers who commence disciplinary proceedings against their employees must follow the rules of natural justice. The employee must:

• Be made fully aware of any formal allegation made against them
• Be afforded the opportunity to reply to any formal allegation made against them
• Be afforded the right to representation throughout the disciplinary process
• Receive the right to a full and objective investigation of the allegation
• Receive the right of appeal

Fair Procedures in Disciplinary Hearings Legal Case

Recently, the Employment Appeals Tribunal criticised Dunnes Stores for disregarding the rules of natural justice in the manner they conducted their disciplinary process as they did not provide a checkout operator with an appeal hearing despite her request for one, awarding her €26,000 for being unfairly dismissed. This highlights the importance of adhering to the rules of natural justice.

In another recent case an employee was awarded €1,500 for the unfair dismissal, and a further €2,663 in lieu of four weeks’ minimum notice.

The Tribunal found that the investigative and disciplinary processes in the case “were fundamentally flawed to the extent that the Tribunal considers and holds the claimant to have been unfairly dismissed.” The exclusion of the employee’s union representative and the denial to him of his representative of choice during the process was unfair and a fundamental breach of his contractual entitlements. The Tribunal could not disregard these fundamental flaws, particularly as the firm had the advice of an external consultant in employment procedures available to it.

The recent case of Castolin Eutectic Ireland Limited V Kita [2018] involved an allegation from the complainant that they had been unfairly dismissed following a workplace dispute. During the incident the complainant requested to speak with the operations manager and told another supervisor within the company that they did not trust their supervisor. Following this incident the complainant had taken a number of day’s sick leave. Upon their return to work the complainant was questioned by their manager regarding the incident and they were handed a letter requesting their attendance at an investigation the next day. The complainant was not provided with a copy of the complaint lodged against them and they were denied access to witnesses and notes of the investigation meeting. This was not disputed by the respondent, however, they argued that the complainant’s conduct had amounted to a gross insubordination and thus justified the complainant’s dismissal. The dismissal was upheld by the WRC who held that a gross insubordination had been found.

The Labour Court reversed the decision of the WRC on appeal. The Labour Court held that while the complainant had not followed reasonable instruction, their conduct did not amount to gross insubordination and that the lack of procedural fairness afforded to them further contributed to their dismissal being unfair. No public remedy or re-reengagement was issued in this case; rather the complainant was awarded €10,000 in compensation. This case illustrates the importance of consistency in the treatment of employees pertaining to disciplinary matters and dismissals.

 

Grievances During the Disciplinary Process

Often, during the course of an investigation or disciplinary process, an employee raises a grievance either in relation to the process itself or in relation to some other related or unrelated matter. In this scenario, the first step is for employers to look to their grievance and disciplinary procedure for guidance regarding the policy and custom and practice approach to this issue.

While the UK Code of Practice does not bind Irish employers, in the absence of any Irish legislative or case law guidance on the subject, t is helpful to look at the UK position for some guidance on best practice. The ACAS Code of Practice 2009 provides some guidance on what to do in a similar situation in Ireland. Section 46 states:

“Overlapping grievance and disciplinary cases…where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”.

It is clear that there is no legal requirement to suspend a disciplinary process if a grievance has been raised.

However, where the grievance relates to the process of the disciplinary procedure, it could threaten the integrity of the disciplinary procedure. The employer should consider whether the disciplinary procedure should be suspended for a short period of time while the grievance is considered.

The 2009 ACAS Guide suggests that a grievance raised in respect of fair procedures may require an employer to consider suspending the disciplinary process where: