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Can you face disciplinary action at work for something you did outside of the office?

View profile for Stephen Woodhouse
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Veteran Liverpool defender turned football pundit, Jamie Carragher, found himself at the eye of a media storm last week following a controversial spitting incident captured on video. The episode has thrown up a number of interesting employment law and HR issues.

Most allegations of misconduct take place within the working environment. However, the incident which led to Carragher's suspension occurred on the M62 motorway when Carragher was travelling home from work. It is therefore reasonable to question whether SkySports can take any action against him at all. The key test is whether he has damaged or risks damaging the employer's reputation. When evaluating this SkySports will need to have regard to Carragher’s strong association with the channel and the virality of the video footage. If it concludes that this has caused reputational damage then a decision to discipline Carragher may fall within a band of reasonable responses even though he was not working at the time.

SkySports swiftly suspended the 38-year-old until the end of the season following incident. The ACAS code of practice states that in cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action. SkySports may struggle to argue that a minimum two-month suspension could realistically be described as “brief”. It will need to tread carefully in this regard; in an interesting recent case, an employer decision to suspend was deemed to be a fundamental breach of contract entitling the employee to resign and successfully claim constructive dismissal.

Due to the abnormal and high-profile nature of this case, SkySports must be careful to avoid trial by media. It should undertake a thorough investigation into all the issues, taking statements from the relevant individuals and invite Carragher to formal meeting(s) before reaching any conclusions. It will also have to consider Carragher's prior disciplinary record and whether he has been sanctioned for any previous misdemeanours. 

To justify disciplinary action, SkySports must show it i) had a genuine belief in the employee's guilt, ii) that it had reasonable grounds for that belief ii) it had carried out as much investigation as was reasonable in the circumstances. 

If SkySports deem that his actions are capable of amounting to grounds for disciplinary or dismissal, but decides not to follow through with it to retain Carragher’s well regarded punditry, then it risks setting a precedent for future misconduct issues. If a subsequent employee is guilty of a similar act of misconduct it will be reasonably expected to be treated in the same way. If not, SkySports may be exposed to futures unfair dismissal claims.