Finland’s Prime Minister, Sanna Marin, recently came under worldwide scrutiny after a video of her drinking and dancing at a private party was leaked. While elected officials are not employees in New Zealand (covered below), the incident has raised questions about what impact an employee’s private activities can have on their employment.
Bringing the employer into disrepute
If an employee’s conduct outside of work could reasonably be viewed as having an adverse effect on the employer’s reputation, the conduct could be considered as bringing the employer into disrepute.
For an employee’s actions to bring an employer into disrepute, there must be a clear link between the employee’s conduct and their role at work. The employer should also be able to establish its business reputation has been harmed or could potentially be harmed because of the employee’s conduct. For example, employee conduct that could bring their employer into disrepute is an employee being convicted of a crime that is repugnant to the objective observer or posting offensive, discriminatory comments in the public arena.
When an employer is considering whether an employee’s actions have brought its business into disrepute, it should consider the following questions:
- What was the nature of the employee’s conduct?
- Was it clear the employee was employed by the employer while the conduct was occurring (e.g., the employee was wearing a company uniform, driving a branded company vehicle, i.e., is there identification linkage between the employee and employer)?
- Is the public likely to think less of the employer or stop doing business with the employer because of the employee’s conduct?
- Have other employees been impacted by the conduct?
- Is the employee’s conduct compatible with the role the employee performs and the business of the employer?
All these factors are relevant. The overarching legal test is: whether a neutral, objective, fair-minded and independent observer, apprised appropriately of the relevant circumstances, could have considered the relevant actions to have brought, or to be a reasonable risk of bringing, the employer into disrepute.
What steps can employers take?
If a link between an employee’s conduct and their role at work can be established, an employer may decide to commence a disciplinary process. After conducting a fair disciplinary process, the employer may decide to dismiss the employee for bringing it into disrepute. Throughout any disciplinary process, the employer must act as a fair and reasonable employer, considering all relevant circumstances.
Employers could consider inserting a clause into employment agreements clarifying the employer may, after following a fair disciplinary process, dismiss an employee if their conduct outside work brings the employer into disrepute.
We suggest employers seek legal advice before deciding to dismiss an employee based on an employee’s private actions outside of work. We can assist in this process.
What about elected officials?
Elected officials, such as Members of Parliament and Councillors, are not employees (except for certain tax purposes), and are not subject to any contractual obligations regarding their duties. Elected officials are, however, often subject to Codes of Conduct and ultimately accountable to the voters. If an elected official, such as a Member of Parliament, acts in their private life in a manner unbecoming to their office, they may be found to be in breach of an internal policy (like a Code of Conduct) and subject to an internal party process. Depending on the circumstances, this could have flow-on effects, such as expulsion from the party and the triggering of a by-election where voters will get to have their say. Elected officials can be removed from office in limited circumstances, for example, if they are convicted of an offence carrying a sentence of two years or more in prison.
If the Finnish Prime Minister was an employee, her actions would likely not meet the threshold of bringing her employer into disrepute. An employee drinking and partying with friends at their private residence (without some illegal or objectively immoral behaviour judged by current social norms) could not reasonably be seen to damage their employer’s reputation. It is important to remember the legal test for whether an employee has brought their employer into disrepute is judged from the standpoint of an objective fair-minded observer, not subjectively from the employer’s viewpoint.
Conclusion
While not an employee, the incident involving Finland’s Prime Minister is a reminder to employees that their actions outside of work can potentially impact their employment.
Employers could clearly communicate with their employees about expectations, the importance of reputation and start a dialogue around these issues. The employment agreement or company policies could address required standards of conduct.
If your business would like to know more about this, we would be happy to assist.
