The silly season will soon be upon us and with it will come the 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 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

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. For example, it should be possible to establish that link if the misconduct attracted publicity which reflected poorly on the employer.

If an employee does act inappropriately at a work function an employer must also consider how alcohol was supplied. An employer cannot require compliance with its usual standards of behaviour if it allows an unlimited service of free alcohol at a work function. In other words, if an employer allows its employees to become roaring drunk it has to realise it is inevitable that some individuals will take things too far and act inappropriately. In those circumstances a fair and reasonable employer needs to consider the extent to which it contributed to the problem by potentially providing too much alcohol and insufficient controls. 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?


Further information