Now more than ever, the boundaries between a person’s working life and personal life are blurred. The ubiquitous smartphone enables employees to be connected to their work 24 hours a day, with many work phones and laptops doubling as personal devices. The increasing prevalence of remote working can blur the distinction between personal and work lives even further.
Yet, the uneasy boundary between work and personal life is not new. If an employee has dinner with a work colleague, runs into their supervisor in a nightclub or sends messages to a supplier late into the night, the intersection between a person’s working life and their private affairs can become fraught and tangled.
Those examples at least retain a clear link to the employee’s job. But what about a situation without such direct connection? Can the employee do as he or she pleases without consequences? Can they post a personal political opinion on Twitter? What happens when an employee is accused of a crime?
Although navigating the boundary between work and personal lives can be difficult, key considerations emerge from case law. If there is a connection to the employee’s work and the employee’s actions could cause damage to the employer, be contrary to the employer’s values, and/or attract unwanted publicity, disciplinary action may be justified.
Employers should bear in mind that employees are entitled to personal lives and the protection of their personal information and will likely be affronted by employers passing judgment on their personal affairs. Employers should carefully consider the facts and the context before commencing a disciplinary process.
The case law
The leading case about employee behaviour outside work is Smith v Christchurch Press Company Ltd  1 NZLR 407. The Court of Appeal held:
there must be a clear relationship between the conduct and the employment. It is not so much a question of where the conduct occurs but rather its impact or potential impact on the employer’s business, whether that is because the business may be damaged in some way; because the conduct is incompatible with the proper discharge of the employee’s duties; because it impacts upon the employer’s obligations to other employees; or for any other reason it undermines the trust and confidence necessary between employer and employee
In other words, employee actions that occur outside the workplace and/or their working hours can be subject to disciplinary action if those actions reasonably undermine the trust and confidence in the employment relationship.
In Smith v Christchurch Press, an employee’s actions toward his colleague in his own home during their lunch break at work were justifiably found to amount to serious misconduct. When it comes to a complaint about outside-of-work conduct, the employer should first determine whether a link exists between the conduct and the employment. If it does, the next question is whether that conduct could bring the employer into disrepute or if for any other reason it erodes the trust and confidence in the employment relationship.
Hallwright v Forsyth Barr Limited  NZEmpC 202
Guy Hallwright was a senior investment analyst who was convicted of causing grievous bodily harm with reckless disregard, following a highly publicised road rage incident in which he drove over another motorist while taking his daughter to an appointment.
Forsyth Barr dismissed Hallwright in a decision which the Employment Court found to be justifiable. Hallwright’s actions had given rise to extensive media coverage which consistently referred to him as an investment analyst or senior employee of Forsyth Barr. His conduct and the consequent prominent media attention were damaging to Forsyth Barr’s reputation, seriously eroding the public’s confidence in the company. It was therefore reasonable to conclude that Hallwright had brought Forsyth Barr into disrepute.
A v Chief Executive Child Youth and Family  NZERA Wellington 125
A senior manager of Child Youth and Family (CYF) was witnessed slapping his son across the mouth after a club squash match. Complaints were made to the police and to CYF.
The Employment Relations Authority determined that A’s dismissal was justified. Although the incident was not reported in the media, was witnessed by very few people and his employment and actions were not widely known, A was nevertheless still considered to have brought CYF into disrepute.
Furthermore, A’s actions were inconsistent with CYF values of protection and care of vulnerable children. Had limited public awareness prevented a finding that A had brought CYF into disrepute, it is therefore likely the dismissal would still have been justified on the basis that A’s actions were incompatible with the discharge of his duties.
Whether an employee’s actions are incompatible with his or her role will always depend on context. For example, a retail assistant publicly expressing a mainstream political opinion is unlikely to justifiably attract disciplinary action, in contrast to a government employee acting in the same way.
Scott v Department of Corrections  NZERA 508
In a more recent example, Corrections Officer Yael Scott posted a TikTok video in her uniform. She was holding up handcuffs, mouthing the words “ima take your man if I want to”, and the post included hashtags: #thoselooksthough, #relaxgirlsitsmyjob, #happyinarelationship, and #fyp. Text above the video read “when partners come to see the men”. The video was reported to Corrections by fellow employees and a member of the public whose partner was in prison.
Corrections investigated Scott’s TikTok account and came across other another video where she was mouthing: “I’m a savage, chock im, shoot im, stab im…what? That’s how it goes”. Despite not being in uniform, she was considered identifiable as a Corrections officer because of the context of the other videos on her account.
Scott’s dismissal was justified. The posts displayed careless and unsafe behaviour, putting herself and others at risk. As the Employment Relations Authority commented: given her position and role with male prisoners in a custodial environment, it is not an unreasonable expectation that videos with sexually suggestive content and conveying words associated with violence, even if intended to be light-hearted, are not created by employees and made available to others.
Furthermore, Scott’s posts created a significant risk of damage to Corrections’ reputation, whether they were viewed by the wider public or a narrower group of friends. Proof of reputational damage was not necessary; instead, the potential for such damage was sufficient. This was also the case in Hallwright, where the court noted that even if there had not been any evidence of damage to Forsyth Barr, the mere potential for damage through the incident’s publicity was enough to justify serious misconduct.
Mussen v New Zealand Clerical Workers Union  3 ERNZ 368
When it comes to assessing the risk of reputational damage, publicity or even widespread knowledge may not necessarily be required.
In Mussen v New Zealand Clerical Workers Union, referred to affirmatively by Hallwright v Forsyth Barr, a union employee was dismissed for being present while others spray-painted a political message on a retailer’s wall. Despite no evidence of damage to the union employer’s reputation, and a suppression order which considerably reduced public awareness of the union’s connection to the incident, the court nevertheless held that the employer had been brought into disrepute “because people will and do talk”.
Wikaira v The Chief Executive of the Department of Corrections  NZEmpC
Not all inappropriate outside-work behaviour can justify dismissal, even where it is of a potentially criminal nature. Iona Wikaira was trying to serve a trespass notice on her stepfather, only for him to reverse his car rapidly off the property, brushing her leg in the process. Wikaira, incensed, struck his windscreen, causing it to crack. She was charged with wilful damage, pleaded guilty and was given a discharge without conviction.
The court indicated that being charged with a crime in the District Court does not automatically bring the employer into disrepute. The charges against Wikaira did not arise out of her duties as a Corrections officer; nor could they be said to be incompatible with her employment duties. Rather, this was a minor infraction of the law unconnected with Wikaira’s occupational status. She had been unjustifiably dismissed.
The court set out a test for determining whether an employee’s outside-of-work behaviour has brought the employer into disrepute: 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.
In making such an assessment, it is important to distinguish between actions that bring the individual into his or her own personal disrepute and how they impact on the employer’s reputation. In many instances, an individual’s poor personal behaviour should not affect how their employer is perceived.
Before undertaking a disciplinary process for an employee’s outside-of-work behaviour, an employer should be wary of impinging on the employee’s privacy. While a procedurally fair process may not specifically require an employer to comply with all of the obligations under the Privacy Act 2020, employees do have the ability to take privacy claims directly to the Privacy Commissioner. Privacy considerations could also influence a perception of whether the employer’s actions were fair and reasonable in the circumstances.
Employers would be well-advised to consider whether they have acquired personal information legitimately and to use or disclose such personal information only if it is directly related to the purposes for which it was obtained. ■
William Fussey is an associate at Anderson Lloyd and a member of the ADLS Employment Law committee ■