From The Times

December 3, 2009
When does a hobby become an employment issue?
Grania Langdon-Down
A senior military analyst with the New York-based Human Rights Watch has been suspended while
the organisation investigates his internet postings about his hobby of collecting Nazi and other war
memorabilia.
Tom Porteous, the London director of Human Rights Watch, says that the group is looking at Marc
Garlasco’s blogs to see if there are any inconsistent remarks that might bring the organisation into
disrepute.
So when does a hobby become an employment issue? For Allen & Overy, the “magic circle” law firm,
a highly erotic novel published online by Deirdre Dare, a lawyer in its Moscow office, was clearly a
step too far, prompting the firm to sack her for gross misconduct this year.
Large employers generally make it clear in their written employment contracts that employees have a
contractual duty not to affect their employer’s business adversely by behaving badly outside work,
Juliet Carp, an employment solicitor with the City law firm Speechly Bircham, says.
“In practice, problems often arise where the employment documents do not clearly prohibit the
offending activities,” she says. “For example, the employer may want to argue that a general
restriction on bringing the employer into disrepute prohibits ‘swinging’ at weekends.
“However, that the employee’s activity may be embarrassing or silly is unlikely to be enough, unless of
course there is some special reason why the employee’s public image is critical for the employer.
Potential customers are unlikely to be put off by a filing clerk who likes to dress as a parrot at the
weekend, whereas a headmaster who regularly bumps into parents in the supermarket in his parrot
costume might find it hard to maintain his authority at school.”
Rachel Dineley, head of diversity and discrimination at the national law firm Beachcroft, says that it
had a case where an employee candidly admitted that he enjoyed erotica but could not see that it was
a clear breach of company rules to pursue his hobby on the internet in his lunch hour and could have
caused acute embarrassment to colleagues. He resigned rather than face discipline for gross
misconduct.
“Employers must not overreact when learning about an employee’s hobby,” she says. “The first job is
to investigate whether it impinges on his or her work. If it does, employers need to be proportionate in
the sanctions they impose. My advice to employees is — don’t be naive and assume your private life
is necessarily private, particularly if you use the internet or a website. Think carefully before you do
anything rash because it could come home to roost and it may not be worth losing your job over.”
These cases raise issues of privacy and human rights, says Owen Warnock, an employment partner
with the national firm Eversheds. Employees will argue that sanctions are an interference with their
rights to a private life and freedom of expression. They can also raise potential discrimination claims
of unfavourable treatment on grounds of sexual orientation or religious or philosophical belief.
“However, none of these rights is absolute,” Warnock says. “The two key questions for employers are:
does the individual’s hobby mean colleagues or clients would find it unacceptable to continue working
with him or her and does the person’s behaviour damage the organisation’s reputation?”
Max Mosley, former president of the Fédération Internationale de l’Automobile (FIA), survived a
confidence vote after newspaper revelations about his interest in sado-masochism. “It may have
caused lots of interest and controversy but it is another thing to say it affected his ability to do his job
or damaged the reputation of the FIA,” Warnock says. “However, given most cases involve sex, there
is a third aspect to bear in mind. If you sack someone and they sue for unfair dismissal, it could do
worse damage to your reputation because the nature of these cases means they are likely to attract
publicity.”
Garlasco says that he deeply regrets causing offence with some “juvenile and tasteless” postings but
says on the political website The Huffington Post: “I’ve never hidden my hobby, because there’s
nothing shameful in it, however weird it might seem to those who aren’t fascinated by military history.
“Precisely because it’s so obvious that the Nazis were evil, I never realised that other people,
including friends and colleagues, might wonder why I care about these things.”
http://business.timesonline.co.uk/tol/business/law/article6941304.ece