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Misconduct outside the workplace

The silly season is upon us! With this comes work Christmas parties, social gatherings with clients/customers and of course, an increase in alcohol consumption. While most employees will conduct themselves responsibly, there are a select few that will fail miserably. The question many employers face is: what happens when an employee acts up outside of the workplace?

Case law has long established that misconduct outside of work can justify dismissal. However, it is important for employers to remember that not all inappropriate conduct outside of work hours will be actionable. There must be a link between the misconduct and the work environment. Other relevant factors include the extent to which:

  • the misconduct impacts on the employee’s ability to perform their role
  • the employer’s trust and confidence in the employee has been undermined
  • the employer’s reputation has been or can reasonably be expected to be brought into disrepute; and
  • the conduct impacts upon the employer’s obligations to other employees.

If an employee misbehaves at a work function it is easy to establish a link between the misbehaviour and the employment relationship. Even though the misconduct may occur outside of work hours, the employee is still attending the event in their capacity as an employee.

If the misconduct occurs after the work function, say at the local pub, it can be more difficult to make that link back to the employment environment, however it is not impossible. The Courts have recognised that it is not necessary that the conduct itself be directly linked to the employment, but rather that it have the potential to impact negatively on it. There is, therefore, scope for an employee to be held to account for what might otherwise be regarded as a private activity. For example, it should be possible to establish that link if the misconduct attracted publicity which reflected poorly on the employer. However just because an employee does something he or she should not have done, especially outside of work, does not necessarily mean his or her employer will be brought into the same disrepute as the employee.

If an employee does act inappropriately at a work function an employer must also consider how alcohol was supplied. An employer must acknowledge their part of any problems arising when they have failed in their obligations as a good host. Therefore, it is important that employers who provide alcohol to staff take steps to manage it responsibility. This includes limiting the bar tab, ensuring plenty of food is provided, monitoring employees behaviour and restricting alcohol intake if required and ensuring numbers for taxis and dial-a-driver are available.

The key thing to ensure is that each case must be determined on its own facts. An employer must also remember that the standard it must meet for making decisions is – what could a fair and reasonable employer do in the circumstances?


This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.

For further information

Alexandria Till - Harkness Henry Partner

Alexandria Till

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