Euros 2024: Steering Away from Employee Misconduct in and Out of the Office 

Euros 2024 has England football fans enthralled, bringing a lot of excitement and high energy to the pubs and stadiums. But what if the tension becomes too much and results in police involvement? How does this impact their employment? Senior Associate, Alex Hodson, examines below the law concerning misconduct inside and outside the office.

Handling the Misconduct Process Fairly

There are five potentially fair reasons under the Employment Rights Act 1996 to dismiss an employee, one of which is conduct. Misconduct after any of the Euros 2024 matches could lead to dismissal if the employer’s reputation is on the line.

A fair process must be followed when dismissing an employee for conduct. Following the case of British Home Stores v Burchell, the employer must:

• Carry out a reasonable investigation into the allegations;
• Form a genuine and honest belief in the guilt following the investigation; and
• The decision to dismiss must be in the band of reasonable responses.

In addition to the above, the ACAS Code of Practice must also be followed, such as:

• Inviting the employee to a disciplinary meeting to respond to allegations of conduct. This includes providing copies of the evidence from the investigations and allowing the employee sufficient time to prepare;
• Allowing the employee to be accompanied by a trade union or employee;
• Confirm the decision in writing and reasons;
• Allow the employee the opportunity to appeal.

If the conduct is serious, but a proper process isn’t followed, the employment tribunal could call it unfair dismissal. However, they can decide to reduce the compensation by up to 100%.

Misconduct Outside of Work Following Euros 2024 Matches

It is believed by many people that how they conduct themselves outside of work will have no impact on their job or their position within a business. However, this is not the case.

If an employee’s conduct, especially during Euros 2024 or any other sporting season, could potentially bring a company into disrepute, then it could be found reasonable to dismiss an employee for conduct, specifically gross misconduct. The above process still must be followed for any company to show that they have been dismissed fairly.

Case 1: Rise of Football Hooliganism Following World Cup Matches

The case of Liddiard v Post Office went all the way to the Court of Appeal. During the World Cup in 1998, football hooliganism was reported by England fans in France. This resulted in the Prime Minister at the time calling on companies and the public sector to take ‘strong action’ against any of their employees who were involved in this behaviour.

The claimant in this case was convicted of an armed attack on a police officer. He was then sentenced to 40 days’ imprisonment in France. Moreover, he was named and shamed by the Mirror identifying him as a postman and on his return, he was dismissed by Royal Mail. The employment tribunal initially determined that the dismissal was unfair because, in its view, Royal Mail had only dismissed him because of the Prime Minister’s call for strong action.

However, the Court of Appeal found it was the behaviour of the hooligans that came first, and it was their behaviour that caused the statement by the Prime Minister and the press. Therefore, it was ultimately the claimant’s behaviour and his fellow hooligans that brought the Post Office into disrepute and caused the dismissal.

Case 2: Football ‘Hooligan’ Unfairly Dismissed Due to Lack of Proper Process

In the case of Royal Mail v Doherty, a photo was published in a newspaper of the claimant allegedly fighting between football supporters at the 2000 UEFA Cup Final. He denied fighting and asserted it was self-defence. Royal Mail dismissed him.

The employment tribunal found that Royal Mail failed to consider the full circumstances when dismissing the claimant. Hence, they essentially failed to follow the process described above in showing that they formed a reasonable belief based on their investigations.

Case 3: Estate Agent Sacked Due to Racist Tweets

There was a matter that was widely reported in the newspaper concerning an estate agent named Andrew Bone who worked as a commercial building manager for Savills. After the Euro 2020 finals, where England players failed to score at the penalty shoot-out at Wembley, they were bombarded by racist tweets, one of which was posted by Mr Bone.

The Police became involved, and Mr Bone was arrested. Mr Bone initially claimed that his account was hacked. Again, the Prime Minister at the time ‘condemned’ the behaviour of the individuals who made these tweeter posts. Savills initially suspended Mr Bone, pending the Police investigations, and made clear that they had a zero-tolerance policy on any form of racial abuse or race discrimination. They eventually dismissed him.

This matter was never brought to the employment tribunal, but given the serious nature of the allegations, specifically, the racist behaviour of Mr Bone’s conduct, and if Savills could show they followed the above process, it is likely that an employment tribunal would have considered dismissal fair in the circumstances.

Euros 2024: Dealing With Misconduct Inside of Work

What happens if workplace banter between opposing fans becomes heated and leads to violence?  The case law is clear on this, the above process must be followed. Keep in mind that all circumstances must be considered, and the treatment of the individuals involved must be consistent.

1. In Post Office v Fennell [1981] IRLR 221, the claimant in this case was dismissed for punching a colleague. He argued the Post Office had dealt differently with similar incidents in the past. Plus, there was evidence to show that Royal Mail had departed from their previous approach. The claimant’s dismissal was found to be unfair.
   
2. In the case of UK Coal Mining Ltd v Raby [2003] UKEAT, the claimant got into a physical altercation at work. From the claimant’s and his colleague’s version of events, it appears the tone of voice was misunderstood. The claimant admits to ‘tapping’ his colleague with his work helmet, but the colleague stated it was an aggressive hit in a fit of rage. The colleague alleged he acted in self-defence but was dismissed. The employer followed the ACAS Code of Practice.The only issue being challenged in the Employment Appeal Tribunal (“EAT”) was whether the dismissal was a reasonable response. This is because the claimant’s colleague was only given a warning.  The EAT formed the view that both individuals were culpable in the fight. Hence, if the colleague had been dismissed too, then the dismissal would have been fair.

Employee Compensation Can Be Reduced For Inconsistent Treatment of Parties

However, as stated above, compensation could be reduced. In a similar case, Westlake v ZSL London Zoo ET/2201118/15 the employment tribunal reduced the compensation by 100%. This was on the basis that if the employer had dismissed the other employee, the probability of the claimant being dismissed was 100%.

If there is any discriminatory element to the conduct inside work it is expected it would be treated more severely. Most companies have diversity, equity, inclusion, anti-harassment and/or bullying policies in place for zero tolerance on behaviour that is discriminatory.

Final Thoughts: Enjoying Euros 2024 Safely and Reasonably

When it comes to misconduct in and out of work, the legal tests in the Burchell case must be followed. Failing which, an employee’s dismissal could be considered unfair.

However, an employee should be mindful of their general behaviour outside of work, not just during the Euros 2024 matches, to avoid disciplinary action altogether. Plus, if they use social media to promote their employer, or show their connection with their employer, there is a risk that their company could be brought into disrepute by their conduct outside of work.