Luis Suarez has been banned from playing football for four months after allegedly biting an opponent during the World Cup, and therefore finds himself in breach of contract. Liverpool, Suarezs club, have had to take difficult decisions and are reputedly at an advanced stage of transferring him to Barcelona albeit for a smaller fee than they might have, had he not, as all the jokes go, Gone for a bite of Italian! Peter Stanway, our BackupHR™ legal expert comments:
So what parallels are there with employment law and practice? Leaving aside the health & safety implications and the frustration of contract arguments, it raises the issue of behaviour outside of work. To what extent is an employer legitimately entitled to say that events in the private lives of employees are relevant to their work?
Suarez was technically not involved in club activities at the time, playing for Uruguay, and therefore Liverpool have been faced with deciding whether the actions of their employee have brought the business into disrepute. His conduct at work (assault) would usually represent gross misconduct and would probably result in summary dismissal.
It could well be argued that he has brought his employer into disrepute because of the link between the off-duty misconduct and the workplace. In one legal 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.
However, dismissal in these circumstances would necessarily be fair. The key issue is that the off-duty misconduct impacts upon the workplace so that; the employers trust in the employee has completely broken. The behaviour must have a serious adverse impact upon the workplace, potentially damaging the employers reputation or seriously undermining trust.
The most likely kind of conduct which has been deemed as bringing the business into disrepute is sexual conduct. If we return to football, this is often something which can happen to certain professional footballers who live their lives in the public eye. For example one case involving a professional football who was caught having an affair, and subsequently reported in the newspapers, was deemed to have brought his club into disrepute as this occurred while abroad, representing the club on a foreign tour. Another player, however, playing for the same football club was not found to be bringing the club into disrepute following an affair, which although reported in the media, did not happen while representing the club. Each case in relation to this area of law has to be treated on its own merits.
Action Points
- The actual conduct by the employee must be taken into consideration alongside the actual job that the employee is employed to do and the potential damage to the employers reputation.
- Wise employers will ensure that specific clauses are contained in their employment documentation, enabling them to terminate employment, should conduct outside work bring the employer into disrepute.
- You will still be required to fully investigate the conduct and deal with it fairly
- You should be careful not to instigate disciplinary proceedings based solely on your personal disapproval of the employees out of work conduct.
- If the degree of disrepute is minor, the best approach should be a quiet word.
Management often turns a blind eye to disruptive behaviour if the benefits outweigh the consequences, as happened before with Suarez. Such inaction has consequences, legally and in relation to employee morale, it is also a problem if a less valuable player behaves in a similar way in the future how can you be consistent?
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
