When does an employee’s behaviour outside work become an employer’s business? With blurred lines between personal and professional lives, employers increasingly face tough decisions about “off-duty” conduct. Below, we address some of the most pertinent questions employers face when dealing with conduct that occurs outside of the workplace, in particular conduct which leads to a criminal conviction, including when, why, and how employers can take action, without risking legal pitfalls.

Are employers generally allowed to discipline employees for conduct that occurs outside of work?

Traditionally, an employee’s personal life and work life are considered separate, and employers do not have automatic authority to discipline staff for actions outside the workplace. However, there are circumstances where conduct outside work may become relevant to the employment relationship, particularly if it impacts the business, other employees or the employer’s reputation.

What factors determine whether out-of-work conduct is relevant to employment?

The key consideration is whether there is a “sufficient connection” between the conduct and the employment. Employers should assess if the out of work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer’s business. Other factors to consider when making this assessment are:

• Whether the conduct risks bringing the employer into disrepute or causes reputational harm.
  
• Whether the offence makes the employee unsuitable for their role.
  
• Whether the employer has genuinely lost trust and confidence in the employee.
  
• Whether the matter has been reported in the media, increasing reputational risk.
  

These are not exhaustive or cumulative requirements, but rather considerations that may vary in importance depending on the case.

Can a criminal conviction outside of work ever justify dismissal?

Sometimes, but not always. A criminal conviction may justify dismissal if it is related to the employment relationship. The nature of the conviction, whether the employee disclosed it, the timing, and the connection to the job are all relevant. For example, a conviction for theft by an employee working in retail is likely to be seen as sufficiently connected to their employment, justifying dismissal due to a breach of trust. In contrast, a minor altercation or unrelated offence may not warrant disciplinary action.

Are all criminal allegations or convictions relevant to employment?

No. Many criminal offences have no bearing on the employment relationship. While some employment contracts allow for summary dismissal in the case of serious crimes, minor offences (such as minor traffic violations) typically do not justify such action, especially if no custodial sentence is imposed.

What if a criminal conviction affects an employee’s ability to perform their job?

In some cases, a conviction may result in the loss of a licence or permit essential for the role (for example, a driving licence or security clearance). If the employee can no longer perform their duties, termination may be justified, not necessarily as a disciplinary matter but due to incapacity. The terms of the employment contract and relevant policies are crucial in these situations.

What should employers consider when recruiting candidates with criminal convictions?

Many employers ask candidates about criminal convictions during recruitment. While this may be relevant for certain roles, there is no general legal mechanism for conducting criminal background checks, except in specific sectors. Also, there is also no obligation on employees to disclose spent convictions (i.e. those that are minor in nature and that occurred 7 or more years prior) unless the candidate is applying to work for certain bodies such as the Garda Síochana or the defence forces. In any event, employers should ensure their recruitment policies are clear and comprehensive, and that any action taken is proportionate and justified by the requirements of the role.

What are the risks for employers in taking disciplinary action for conduct outside work?

Employers must tread carefully to avoid claims including unfair dismissal, discrimination or even potential breaches of privacy. Any disciplinary process must be fair, transparent and based on a clear connection between the conduct and the employment relationship. The onus is on the employer to demonstrate actual or likely damage to the business or a breakdown of trust.

What is the overall approach employers should take?

Employers should assess each situation on its own merits, considering the nature of the conduct, its relevance to the role and the potential impact on the business. Fair procedures and clear policies are essential to ensure any action taken is lawful.

A&L Goodbody LLP
Telephone: +35316492000 
Website: www.algoodbody.com