What if Jeremy Clarkson had aimed a punch at a member of the public?

One of the most relevant for a business owner was how they should best deal with a violent dispute between two of their employees during working hours.

Clarkson was suspended and is still awaiting a decision on his ultimate fate. The presenter has had warnings from his bosses before, and this could easily end in his dismissal from the BBC.

But what if Clarkson or another of your staff got into a violent fracas with an ordinary member of the public whilst out on the town on a Saturday night?

Read more about the Jeremy Clarkson situation:

There you are on the Monday morning looking at your local paper or local website news feed and up pops the name of your IT controller being charged with assault outside “Sparkys” nightclub at 2am on Sunday morning.

Or perhaps you were watching footage of the Chelsea supporters preventing a black Frenchman from boarding a tube train in Paris because of the colour of his skin.

There in the crowd of fans singing and shouting racial abuse is your grinning head of marketing. You’re shocked by both incidents and the damage they could cause to the reputation of your firm and the morale of your staff.

So legally what power do you have as an employer to take action against your employee if the incident occurred outside of working hours?

David Greenhalgh, partner in the employment team at Joelson Wilson, said employees being accused of a criminal offence creates a “delicate balancing act” for employers. “Businesses will want to treat their employees fairly and uphold the principle of ‘innocent until proven guilty’ but unproven allegations in relation to an employee can cause significant reputational risks to a business,” he said. “Especially when the employee is very senior or the criminal case takes a lengthy period of time to resolve.”

There is no rule that says an employee ought to be dismissed simply because they are under suspicion or have even been convicted of a criminal offence.

Employers looking at the ACAS Code of good employment practice would find the following guidance: “If an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.”

Greenhalgh said employers have to be cautious. “Especially where the criminal act isn’t of direct relevance to the business, which would perhaps be a factor pointing towards caution in the case of the Chelsea fans,” he said. “One example, however, of where a criminal act was relevant was where a supervisor in a department store was fairly dismissed after it was discovered he had shoplifted from a nearby store. In the financial services context, it might well be reasonable to dismiss someone strongly suspected of fraud or tax evasion.”

Potential reputational risks might also justify disciplinary action or dismissal if the offence caused to clients is significant. Greenhalgh cited the case of a senior civil servant fairly dismissed after his employer discovered allegation that he had abused children.

“Although he was never convicted and the allegations had no direct bearing on his work, the reputational risks meant it was fair for the employer to dismiss him,” he said. “It is possible that racial abuse might be considered in the same vein and certainly the businesses employing the relevant Chelsea fans will have suffered some reputational damage.”

The growing use of social media has added an extra complexity to this issue. However employers do have the right to discipline or dismiss employees for misguided comments on Twitter and other channels.

“Employees’ privacy rights will not usually be relevant when they post on social media sites as this will usually be considered a ‘public’ statement,” Greenhalgh explalined. “Again the key issue will usually be relevance to the employment relationship.”

Employers caught up in these situations should in the first instance conduct a detailed investigation before any disciplinary action or dismissal is taken. They should also be prudent and obtain legal advice given the complexities surrounding the issues and the risks of potentially costly claims for unfair dismissal if they get it wrong.

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