The employee vetting process doesn’t end once they’re hired

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The same principle applies elsewhere.

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A financial institution hiring someone with a discoverable history of financial fraud would face obvious scrutiny if that person later misappropriated client funds. A fire department employing someone with a known history of arson would have difficulty explaining why it ignored such an obvious warning sign.

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These examples do not mean employers are insurers against every conceivable act of employee misconduct.

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They do mean that the more foreseeable the risk, the harder it is for an employer to justify having done nothing about it.

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There is another misconception employers need to abandon: that what employees do outside the workplace is automatically irrelevant.

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It is not.

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Serious off-duty misconduct can have consequences that damage the employer’s reputation, goodwill or relationships with customers, clients or the public, or otherwise destroys the trust necessary for the employment relationship.

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That is particularly true for employees occupying positions of trust.

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A financial adviser, childcare worker, banker or senior executive whose position depends upon integrity cannot necessarily respond to serious misconduct by saying, “That was my personal life.”

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The relevant question is whether the conduct has a sufficient connection to the employment relationship and whether continued employment remains tenable.

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There is, however, another trap for employers: doing nothing.

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We regularly see employers discover troubling conduct and decide not to act because they are uncertain whether it is serious enough to justify dismissal.

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They hope the problem will disappear. It usually does not.

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Ignoring misconduct can create two problems. First, the employee may continue the behaviour, increasing the risk to customers, clients, colleagues or the public.

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Second, by failing to respond when the misconduct first occurred, the employer may make future discipline more difficult. The employee may argue that the employer knew about the conduct, tolerated it and effectively accepted it.

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Silence can become evidence.

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That does not mean every infraction requires termination. Employment law is not a zero tolerance regime. Employers must consider the seriousness of the conduct, the employee’s position, the surrounding circumstances, prior discipline and the connection between the misconduct and employment.

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But serious misconduct should trigger a serious response.

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That means investigating promptly, preserving evidence, allowing the employee to respond where appropriate, documenting the findings and determining what discipline is warranted. Where the circumstances justify it, that may mean termination for cause.

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Most importantly, employers should think about prevention rather than simply litigation after the damage is done.

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The first question should be: What risk does this employee now pose?

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The second: What should we have done before hiring this person?

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And the third: What systems do we have to make sure the problem does not happen again?

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Employment law is not simply about defending wrongful dismissal claims after an employee is fired.

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It is risk management.

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The cost of properly screening and periodically reviewing employees is trivial compared with the cost of discovering that the person entrusted with children, money or confidential information should never have been provided that responsibility.

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Employers should therefore stop treating screening as a one-time hiring exercise, particularly in sensitive positions.