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Dealing with misconduct in the workplace is something that all managers will have to deal with. More and more often, however, managers and employers find themselves having to deal with misconduct that occurs outside the hours and place of employment. Where it is deemed necessary to discipline and an employee for misconduct outside of work, the misconduct should reflect in some fashion upon the employer/employee relationship. There should be some direct connection between the misbehaviour and the employee's workplace and the employment relationship.

In recent years case law has determined that an employer can be held liable for an incident that takes places at a work-related social event where the circumstances are sufficiently connected with the claimant's work. In the case of Graham v Portroe Stevedores [UD 574/2006], the employer was directed to pay a sum of €154,772 to the Claimant who was dismissed from his employment following an altercation with a more junior member of staff at the office Christmas party.

Any allegation of inter-employee bullying or harassment outside of work is likely to require disciplinary action on the part of the employer. However on the other hand, something like a speeding conviction outside of work may not warrant disciplinary action, unless perhaps the conviction affects the employee's ability to do his job.

Whether or not the dismissal of an employee for a criminal charge or conviction unrelated to the employment is justified will depend upon the circumstances, and upon whether the criminal act renders the employee untrustworthy to continue in their employment.

In the case of Emma Kiernan v A Wear Limited [UD643/2007], an employee posted negative and derogatory comments about her manager on the BEBO website and was subsequently dismissed from her employment for this reason. The Employment Appeals Tribunal (EAT) held that the employer acted disproportionately in dismissing the claimant and that while the employer's disciplinary procedures were fair, the sanction imposed was not.

The EAT also held that while the Claimant's comments deserved strong censure and possible disciplinary action, they did not constitute gross misconduct in the circumstances. However, the Tribunal found that the comments made by the claimant concerning her supervisor were disrespectful, inappropriate and damaging to the employment relationship and to that extent the claimant's contribution to her dismissal was not insignificant. Accordingly, the Tribunal awarded the claimant €4,000 under the Unfair Dismissals Acts. In dealing with any allegation of misconduct, it is important that employers are aware of their responsibilities and obligations which, as set out in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (Statutory Instrument No. 146 of 2000) include that:

For more information on this topic please see the HR and IR Briefing section under the Services Tab.