Luis Suarez is in trouble once again for an alleged offence involving biting. FIFA have just imposed a 4 month ban from football and suspended him from the next nine international matches, but what about his career with Liverpool? Handily bypassing the question of whether Suarez is an employee of Liverpool, and whether they will actually want to get rid of their star striker, can employers dismiss their employees for acts done outside the course of their work?
The answer (as seems to always be the case in employment law) is that “it depends”! The important factor is the link between the off-duty misconduct and the workplace.
In one case, a number of employees were dismissed for having a serious fight outside the workplace and after working hours. The result of the fight was “discord, fear and even perhaps terror” throughout the workplace. The resulting dismissal in this case was held to be fair. The view of the Employment Appeal Tribunal was that the incident was sufficiently close to the workplace to have an effect at work.
Similarly, in another case, an employee who had a fight with a colleague outside work following a long-running dispute about a woman was held to be fairly dismissed, despite the fact that the fight took place off-site and involved a domestic matter. The key issue was that the off-duty misconduct impacted upon the workplace (as the affected colleague no longer felt it safe to attend work). Consequently, the employer’s trust in the employee was completely broken.
However, not every dismissal in these circumstances would be fair. What is key is whether the behaviour would have a serious adverse impact upon the workplace, potentially damaging the employer’s reputation or seriously undermining the trust that the employer has in the employee.
So, where would this leave Suarez in the hypothetical situation above?
The Employee Handbook might be of relevance here. Does the disciplinary policy make it clear what conduct is or is not acceptable? In particular, does it say that off-duty misconduct might result in disciplinary action?
What is the employer’s view on the effect Suarez’s behaviour might have on his suitability to do his job and his relationship with the Club, his fellow players and other colleagues?
Arguably, given that his conduct took place doing the job he is employed to do, albeit not for the benefit of his employers, there may be a greater connection with his employment for the Club leading to a question over his suitability for the role. Given his profile, the Club might also consider its reputation, as well as the potential that he might do this again (perhaps leading to some form of personal injury claim, for which the Club may be vicariously liable). All of that being said, the Club will have to consider its stance given it was seen to ‘support’ Suarez in relation to the previous biting incident in 2013 whilst he was playing for them at the time. Does that fetter their ability to take disciplinary action this time?
Of course, all of this is hypothetical and merely serves to demonstrate some of the potential issues that arise when employers are considering dismissing for conduct outside the workplace. As with all these things, the individual circumstances are of prime importance and every case must be considered on its own facts. In the case of Suarez, it is undoubtedly significant that he is viewed as one of the best footballers in the world at the moment, which will dictate a hefty transfer fee, and that, rather than employment law, may well dictate how the Club deal with the matter.
If you are faced with an employee who commits an act of misconduct outside the workplace, for which you wish to impose a disciplinary sanction, then call our Employment Team, led by Mark Fellows and Joanne Perry, for advice and support on how to approach the situation.