Are their affairs risking your reputation?

Been a very naughty boy

Recently, Chelsea Football Club (CFC) hit the headlines, but not for its players’ prowess on the pitch. Instead, there was a media frenzy over the off-pitch activities of its captain - John Terry - with a woman who was not only his wife’s best friend, but also the partner of a team mate! Many wanted the captaincy removed from him and CFC was under pressure to sack him altogether.

Caught in the act

Suppose one of your employee’s behaved in a similar way, and your business attracted unwanted column inches in the papers. You may think this is unlikely, but what about the couple caught having sex on a beach in Dubai? It wasn’t just their reputations that were dragged through the press.

In your shoes. So if an employee was caught in a similar position, could you just sack them? If not, what would you have to consider first?

Does the duty of fidelity apply?

There are various terms that are “implied” in a contract of employment. One of these is the “duty of fidelity”. It requires an employee to always act in good faith during their employment. Its exact remit depends on their position and includes a duty not to behave in a way that could bring your business reputation into disrepute.

No automatic right. Whilst it can extend to an employee’s conduct outside of work, it does not automatically follow that any breach would entitle you to discipline or dismiss them. This is due to the general presumption that what an employee gets up to in their own time is their business.

Is it affecting his work?

To be able to dismiss them, you would need to show that the behaviour is having a detrimental affect on the employee’s ability to do their job. In the majority of extra-marital affairs this probably won’t happen, and whether or not you consider such behaviour to be immoral will be irrelevant.

Note. This may be different for a religious organisation, as infidelity could adversely affect its reputation if made public. For example, a Christian college recently received unwanted publicity after an employee sent racy e-mails describing her underwear to a married colleague.

Company reputation

You must also be able to clearly demonstrate that your business reputation is linked to the employee’s own “moral standing”. In practice, this would be difficult and would probably only catch someone senior, e.g. a director or an employee in a high-profile role, or position of responsibility.

Explanation. This is perhaps why in John Terry’s case he was stripped of his captaincy, but not sacked as a player, i.e. there was no connection between his affair and his ability to play football.

Tip 1. If you become aware that two employees are having an affair, you are within your rights to speak to both of them and make it clear that you expect them to conduct themselves in a professional manner at all times.

Tip 2. However, if there are any problems that prompt you to take disciplinary proceedings, you must treat both sides fairly and equally. This will avoid allegations of sex discrimination.