A Hooligan at Work?
The group stage of the UEFA Euro 2016 Championship has just started and the newspapers are reporting that the English authorities are seeking to identify around 50 presumed hooligans in connection with offences (and this number may be going up by the day). French authorities have deported several English fans and around 30 Russian supporters. What if one of them was your employee and their out-of-work activities harm others or your company’s reputation, what can be done?
On June 10th and 11th, 2016 violence erupted in Marseille ahead of England’s Euro 2016 match with Russia in which more than 30 people were injured, and yesterday a number of England supporters had to be dispersed in the center of Lille by French riot police.
Although this is not the first time that hooliganism has made international headlines during a European football match, it should be an important reminder that such delinquency and brutality may have a significant negative impact on businesses which discover that their employees may be associated with such acts.
The UEFA Euro 2016 Championship will take place over a one month period and will involve 24 countries. The group stage has just started and the newspapers are reporting that the English authorities are seeking to identify around 50 presumed hooligans in connection with offences (and this number may be going up by the day). French authorities have deported several English fans and around 30 Russian supporters. What if one (or more) of them was your employee?
Today we are being asked by employers whether an employee’s off-duty conduct could result in employment sanctions or termination in situations such as these. The aftermath of Euro 2016 will certainly pose a challenge to current views on privacy and employment laws – especially in this age of social media.
Our clients are questioning if personal information shared on social media, either by an employee or by third parties posting information, photos or comments about an employee, can still be considered private, and if so, to what extent can remedial action be taken? In other words, if an employee’s out of-work activities harm others or your company’s reputation, what can be done?
The answer really depends on the legislation under which the employee is employed.
In Belgium, labour legislation clearly makes a distinction between an employee’s behaviour at work and during their private life. Normally, the actions of an employee in his / her private life cannot be considered as grounds for termination for serious cause, without payment of an indemnity. Therefore, an employee who was arrested (or who appeared in the media) for hooligan type actions, could not be dismissed for cause for this sole reason. It would however be possible to terminate their employment contract with payment of a severance indemnity.
The situation would be different if the employee has a key or trust function in the company, or is, in some way, a company representative / public figure (i.e. a manager, a spokesperson, or a salesperson). In this case, an employment tribunal could indeed consider that the company’s image has been severely damaged by the employee’s actions, even during his / her private life. The company would, of course, still have to prove that the employee actively took part in some illegal actions (and that he / she was not present at the wrong place at the wrong time by ‘accident’). In this case, termination for cause, without severance payment, could be considered with a reasonable chance of success.
Under French employment law, an employee’s private life is in theory strictly separated from their professional life. This means that an employee misbehaving outside their professional life cannot be validly sanctioned by their employer.
However, if the employee’s behaviour in their private life affects the company and causes disorder to his employer, then the employer could consider terminating the employee even if the latter’s misbehaviour occurred outside his professional life (e.g., an employee whose driving licence is suspended because of a traffic offence committed in his private time may be dismissed if driving is required for the performance of his / her functions).
An employee can also be dismissed based on his / her private behaviour if the latter is a breach to the employee’s contractual duties resulting from his / her employment agreement (e.g., a manager stalking a fellow employee outside working hours).
As a consequence, a company informed of an employee’s hooliganism could consider a dismissal, but only if it can establish that such behaviour is directly harming the company (e.g., the employee wears a company outfit) or breaching contractual duties (e.g., a company representative, a teacher or a security guard).
Under German employment law, serious private misbehaviour can justify a notice of termination only under exceptional circumstances. The employer must be able to show that the misbehaviour in private life has a direct negative effect on the employment relationship.
This is the case if the criminal offence committed in private life directly undermines the necessary trust into the employee´s capability to fulfill his contractual duties ( e.g. teachers, security personnel who get involved in racist attacks). Then, notice is justified. Thus, the employment relationship and the nature of the offence must be analyzed in each individual case.
If an employee gets arrested by the police, they must inform the employer as soon as possible about the arrest if they cannot return to work as originally expected. If they fail to do so, this would correspond to a breach of contract. Such a breach normally does not justify an immediate notice of termination.
However, such pre-trial custody could also justify a notice of termination if the employee´s return to work cannot be expected for a conceivable period of time under consideration of the objective facts. During pre-trial custody, the employer is not obliged to pay remuneration.
If an employee gets hurt in a riot, they might not be entitled to statutory sick pay – but only if they actively provoked the fight and started the violent actions. This can be difficult for the employer to establish in court.
Last but not least, the Works Council (Betriebsrat), the workers´ representative committee in the business operation, might ask the employer for the removal of an employee who causes distress in the business operation due to racist or xenophobic activities. Then, the employer is obliged to analyze the case and to decide about notice of termination.
In Italy, there is no specific legislation that governs this area of employment law. An employee’s leisure time is, in theory, strictly separated from their working life and usually does not cause grounds for dismissal. However, there are instances where an employee’s actions could indirectly lead to a dismissal, for example; in instances where an employee’s action damages the company’s reputation; when an employee is charged with a criminal offense; or if the employee’s ability to do his/her job is affected. These three instances may in fact arise as a result of hooliganism.
An employee who gets severely injured as a result of hooliganism, in which he / she was either responsible, or not responsible, will be entitled to take sick leave as long as the absence can be justified and in accordance with the employment contract. Conversely, criminal offences may be a just cause for dismissal, as well as for a refusal to hire, whenever a connection can be shown with the employee’s contractual obligations.
As for dismissals for damaging a company’s reputation, employers will still have to show that the trust and confidence essential to the employment relationship has been irreparably undermined; or, that maintaining the employment relationship will directly harm an employer’s interests (N° 986/2014 R.G.).
Under Spanish Employment Law, it would be extremely difficult to justify a lawful disciplinary dismissal based on an employee’s violent conduct, for example during the UEFA Championship.
Unless specific and extraordinary circumstances which may affect the employer’s image or the labour environment, such as fighting against a work colleague or using work tools in a confrontation, such a conduct belongs to the employee’s private life, and falls outside the scope of control of the employer.
However, if employees are arrested and as a consequence are not able to fulfill their work duties, their employment contract may be suspended during their detention. During that period, an employer would not be obliged to pay salary or Social Security contributions.
Finally, if an employee is charged with a criminal offence, their employer would be entitled to terminate their employment relationship, in part because of their unauthorized absence during their imprisonment (disciplinary dismissal). Nevertheless, in this case a prison sentence must be final and not subject to further appeal.
In the UK there is a division between an individual’s work and private life – but this only goes so far. If an employee’s private actions could bring a company into disrepute, disciplinary action including dismissal might well be justified. Given the poor reputation of English football fans abroad employers have a very low tolerance to any association with football hooliganism. It would of course depend on the circumstances but if the employee is arrested many employers would certainly consider tough action (more so if the employee is convicted of any offence).
Care is needed though as employers cannot always rely on a police investigation and may have to do some investigatory work of their own. Employees injured by hooligans would be likely to be supported – unless it is suspected that their injuries stem from hooligan like behavior. In this case they are far more likely to be exited on ill health grounds (after a fair process of course).
We must not forget that hooliganism is not just limited to football matches. It can happen under many different types of circumstances such as during local protests or national strikes, or as a result of drink and drugs, social discontent and high unemployment. Employers cannot fix all of the world’s ills – but perhaps with the right encouragement and the right environment they can inspire virtue and honour above violence.
Labour may be a burden and a chastisement,
but it is also an honour and a glory.
Without it, nothing can be accomplished.
– Samuel Smiles
For more information contact ELLINT