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Taking action over conduct outside work is tricky

In the weeks since the US Capitol breach in Washington DC, stories have begun to emerge of some of the participants in the riot losing their jobs as a result of their actions that day.

And while it may seem like a far-away problem for employers in Ireland, this development does raise an interesting question. If an employee breaks the law or is otherwise caught behaving in a less than savoury way outside work, what rights and responsibilities does their employer have, if any?

Addressing misconduct in the workplace is an issue that many employers will have to face at some point. Most will have clear policies and procedures in place to address it in line with the employment legislation and the codes of practice.

But what happens if the behaviour of an employee outside the workplace is called into question? If their behaviour brings unwelcome attention to their employer, can they be disciplined or dismissed?

Unfortunately there is no simple answer here, and employers should tread very carefully if they are considering sanctioning an employee for conduct outside work.

Most organisations will have employment terms and conditions outlining the standards of conduct they deem acceptable among staff in the course of their work. These standards tend to relate to issues such as conflicts of interest, data protection or accepting gifts from third parties, however, rarely do they cover behaviour.

If an employer is taking disciplinary action against an employee for an incident that has occurred outside the workplace, they will generally need to prove a connection to either the employer relationship or the workplace.

A number of cases that have come before the Workplace Relations Commission (WRC) in Ireland demonstrate how an employer can be liable for incidents that occur outside the normal place of work - at social events, for example, or on social media.

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