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Unfair Dismissal for out of work activity

Posted on November 20, 2015

20 November 2015: Should employees be sacked for off-duty behaviour?

As reported in the press, Clive O’Connell, a partner in a law firm, was sacked after referring to ‘scouse scum’ during an interview after a match between Chelsea and Liverpool. The interview was posted on YouTube where it was viewed a number of times. Although he apologised, Mr O’Connell was still dismissed.

 

Employers generally have disciplinary policies which cite ‘bringing the company into disrepute’ as an example of gross misconduct but can that justify dismissal?

 

In Pay -v- The United Kingdom (EHCR) Laurence Pay was a probation officer involved in the treatment of sex offenders but on the side had a business selling bondage, domination  and  sadomasochism  paraphernalia. His website had pictures of him and others, semi-naked, performing S&M.  He was dismissed because this material was in the public domain and was incompatible with his position as a probation officer working with sex offenders. Public knowledge of his extra curricular activities affected the service. He was dismissed.

 

At the ECHR Mr Pay relied on Articles 8 and 10, saying that in “democratic  society”  there should be  pluralism,  tolerance  and broadmindedness to such activities. The ECHR did not agree. His dismissal was proportionate on the circumstances.

 

In Teggart v TeleTech UK Limited 2011 the tribunal found that TeleTech had fairly dismissed Mr Teggart for posting vulgar comments about the promiscuity of a female colleague on his Facebook page. Although his comments did not bring the employer’s reputation into serious disrepute, the employee’s harassment of his colleague was in breach of the employer’s policies and was sufficiently serious on its own to justify his dismissal for gross misconduct.

 

In Redfearn v UK in 2012, Mr Redfearn, a bus driver, was dismissed after being elected Councillor for the BNP, due to fears of violence on his bus route.  The ECHR held that the UK did not give adequate protection from dismissal on the grounds of political party membership, that his right to freedom of assembly under Article 11 of the ECHR was infringed and that he should have had protection against dismissal connected to political party membership.

 

Comments about Liverpudlians are not a political opinion, which may in any case be offensive. Fans of the beautiful game such as Mr O’Connell would be wise to be circumspect when expressing similarly forthright views in the media, whether online or on TV.

 

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