This week, a video recording of Chelsea fans in the Paris Metro came to light. This showed a very nasty situation where Chelsea fans acted in an aggressive and racist manner towards a person trying to board a Paris Metro train. There was no attempt to hide the motivation behind the fans with the incident being accompanied by chanting of “we’re racist and that’s the way we like it”.

The reaction of the public and the media has been to condemn the Chelsea supporters and there is a desire for these supporters to be publicly identified. The day after the video was released, a person on the Metro train was identified as a finance worker in London. It is not clear whether he was involved in the racist chanting and/or acts or whether he was an innocent bystander. Either way, more names are likely to come out over the next few days together with the identity of their employers. Some of the employers may wish to take action against the employees or might feel pressure to take action depending upon the nature of the business. This immediately raises the issue as to whether racist and violent misconduct on the Paris Metro can affect the employment of an employee in his employment back in England?

Misconduct is, of course, a fair reason to dismiss an employee but misconduct will generally be misconduct at work. However, we have had numerous cases over the years where employers have wanted to dismiss employees for misconduct which has taken place outside work. These cases will commonly involve allegations/offences involving violent assault and sexual misconduct.

Outside work misconduct can be a fair reason to dismiss but it will need to have an adverse impact on the employment relationship. Factors to consider will include:-

1. What is the potential damage to the employer’s reputation if the employment of the individual continues?
2. What is the nature of the employee’s job?
3. Could a serious allegation or conviction for a racially aggravated offence make the employee’s continued employment impossible?
4. What will the effect of continued employment of the employee be on the rest of the workforce?

Generally, off duty misconduct which leads to dismissal will have a criminal element. This would be the case in connection with the Chelsea fans.  The ACAS Code addresses this and says that being charged or convicted with a criminal offence will not normally in itself be a reason for disciplinary action.  The Acas Code says consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.  This leads us back to the questions I highlight above.

The next week or so will be very interesting in connection with this matter. The people responsible for this need to be investigated and one would hope that the French and British police take this extremely seriously. I am sure the individuals involved will be extremely worried about criminal prosecutions. However, we often find that the ramifications of offences such as this can go much further and we may find that some of these Chelsea “fans” lose their livelihood as well.

Employers need to be cautious and this is not the first time that football fans have been in the spotlight. Employers have dismissed football fans caught on camera previously and there have been cases where these had been found to be unfair in situations where the continued employment of the individual would have no adverse effect on the employment. Employers would be well advised to deal with this firmly but not be pressured into any kneejerk reactions.