What if an employee turns out to be a hooligan? - as published in HR magazine
What to do if one or more of your workers engaged in football hooliganism recently
The group stages of the 2016 UEFA European Championship were marred by violence with fans clashing both inside and outside the stadium. Five English fans were jailed for their part in the violence ahead of the England game against Russia. French authorities deported several English fans and around 30 Russian supporters. Although this is not the first time that hooliganism has made international headlines during a European football tournament, it is an important reminder that behavior of this kind can have a significant negative impact on businesses which discover that their employees were involved. What if one (or more) of them was your employee and is the position the same in other European countries?
The situation varies from country to country. In the UK there is a division between an individual’s work and private life, but it only goes so far. If an employee’s private actions bring the employer into disrepute, affect their suitability to do their job or their relationship with their employer, colleagues or customers, disciplinary action, including dismissal, might well be justified. If an employee is arrested, many employers would certainly consider tough action. However, they cannot simply rely on the arrest, the police investigations or even a subsequent charge or conviction. They need to carry out an investigation of their own and hold a disciplinary hearing giving the employee a chance to give their side of the story.
The position on the continent is a different. In the majority of European countries labour legislation makes a clear distinction between an employee’s behavior at work and in their private life. Normally, an employee’s actions in their private life cannot be considered as grounds for dismissal. Therefore, an employee who is arrested for hooliganisms, or who features in media reports or on social media participating in hooliganism, cannot be dismissed solely for this reason, although in Belgium it would be possible to terminate employment upon payment of a severance indemnity. However, in exceptional circumstances, in some countries - such as Spain, Italy, Germany and France –serious private misconduct can justify dismissal if the employer can show that the misconduct has a negative direct effect on the employment relationship. For example, if a criminal offence committed outside work directly undermines the necessary trust in an employee´s ability to fulfill his contractual duties.
This is also the case in almost all countries when the employee has a key function, holds a position of trust in the company or is a company representative/public figure (for example a manager, spokesperson or salesperson). In this case the employer would need to prove that the employee actively took part in illegal activity. In terms of the violence taking place in the shadows of the Euros, there is a real risk that (social) media coverage could provide damning evidence to employers.
If an employee is injured as a result of hooliganism, in all countries they are entitled to take sick leave in accordance with their employment contract as long as the absence is justified. In Belgium, France and Spain employers have no alternative but to pay the sick leave indemnity. However, under German law an employee hurt in a fight may not be entitled to statutory sick pay if they actively provoked the fight. The Italians take a similar approach.
Of course hooliganism is not just limited to football matches. It can also occur during protests, strikes or on a drunken night out. The legal position and the actions an employer can take to address hooliganism in these scenarios will be the same as above.
This article. written by Dan Begbie-Clench, was originally published in HR Magazine at http://www.hrmagazine.co.uk/article-details/what-if-an-employee-turns-out-to-be-a-hooligan.
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