Spitting feathers – what does the Jamie Carragher incident tell us about how employers deal with misconduct outside of work?

The details of the incident involving ex-Liverpool FC player Jamie Carragher do not need repeating. Anyone with even a passing interest in football is aware of the circumstances which led to his suspension by Sky TV.

However, the incident raises a number of interesting points for employers, particularly the question of whether acts of misconduct outside of work can be treated as a disciplinary matter.

It is first worth saying that it is unlikely that Jamie Carragher is an employee of Sky; he is much more likely to be self-employed, particularly given that he also appears as a pundit for a number of other broadcasters. However, if for argument’s sake we assume he is an employee, could Sky dismiss him?

The short answer is yes. The longer answer is that it is entirely possible for employers to discipline employees for misconduct which takes place outside of work. This usually occurs where either (1) the misconduct occurs during a time which is an extension of work, such as an office party; or (2) the misconduct brings the employee into disrepute.

In Jamie Carragher’s case, the argument would be that his actions caused reputational damage to Sky. Whether or not this damage would justify dismissal depends on a number of factors, including the nature and seriousness of the reputational damage and whether or not there are any legitimate mitigating factors.

A full investigation and disciplinary process would also be required before reaching any decision and employers should avoid the temptation to jump to conclusions or rush to a decision, even if the incident on the surface appears to be very serious.

The issue of reputational damage would also need to be properly considered, since many employers have been criticised by the courts for relying on this factor when dismissing employers, even though  objectively no reputational damage could be shown.

This is of course an unusual case, and ordinary employers are much more likely to face this issue in the context of employees receiving driving convictions or committing minor criminal offences outside of work.

For a smaller business, reputational damage may be less of factor, with the focus instead being on the suitability of the individual to continue in the role in light of their misconduct. For example, a driving offence may make an individual unsuitable for (or unable to carry out) a driving role.

The key point is that employers should always conduct a thorough investigation and follow a fair disciplinary process before reaching a decision. The decision reached must also be consistent with other previous decisions, or be mindful of setting a precedent for future incidents.

If you are an employer concerned about how to deal with a disciplinary matter in your workplace, please get in touch with our Employment Law experts on 0151 433 6042 or employment@mlplaw.co.uk.