Sunnybrook incident highlights link between off-duty conduct and employer liability, lawyer says
It’s a tale as old as time: an employee’s off-duty behaviour goes viral on video, and their employer is forced to act.
The most recent case involves Sunnybrook Health Sciences Centre in Toronto, which announced this week that following an investigation, it had fired an employee after a video of them circulating on social media showed them using racist language towards a passenger on public transit.
The video shows an individual wearing a sweater bearing the Sunnybrook logo directing racist language at a passenger on the Toronto Transit Commission (TTC), according to CP24. On Wednesday, the hospital put out a statement saying it was aware of a video circulating that appeared to show an individual wearing apparel bearing the organization’s name using racist language toward another person. The following day, the hospital confirmed the individual was their employee and that they were no longer employed.
The incident raises a question for employers: should organizations be restricting employees from wearing branded clothing in public?
“Marketing departments love their swag — but in the age of social media, it’s worth asking whether branded merchandise is starting to create more mischief than good,” says Ryan Edmonds, an employment lawyer at Workplace Counsel in Toronto.
Case law and social media
Edmonds says there is a distinction between conduct that occurs on company time versus an employee’s own personal time — however, that distinction gets blurred when something creates a nexus to the employer.
Traditionally, he says, case law examines five factors that can determine whether off-duty conduct can lead to termination. Those include:
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whether there is harm to the employer’s reputation;
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whether the alleged connection creates an inability for the employee to perform their duties
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; whether it creates a disruption to co-workers’ willingness or ability to work with the employee
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; whether a serious breach of the Criminal Code has occurred that is injurious to the employer and its workforce’s reputation
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whether there has been an impairment of management and operations.
Employers do not have to prove all of those factors — just one. In this incident, an employee wearing branded clothing that is broadcast on social media is enough to create that nexus, he says.
Should branded clothing be banned?
With situations such as this, Edmonds says the better approach is not to ban branded clothing but to communicate to employees that wearing company gear in public makes them an ambassador for the organization.
“The better HR approach is probably — instead of effectively limiting the free advertising that an employer gets by having their workforce commute in branded windbreakers — to communicate that when employees are in public wearing the company’s branded clothing, they are essentially ambassadors for the company, and they need to be cognizant of that,” he says.
If that expectation is clearly communicated, it also makes it easier for the employer to establish the nexus when off-duty conduct becomes an issue, he adds.
HR can also communicate that if an employee chooses to wear branded clothing while expressing views — whether belligerently, racially, or otherwise — during off-duty hours, there will be consequences.
“Although we live in a society where somebody can choose to go on a belligerent, racist, or sexist rant on their own time, that doesn’t mean they’re free from consequences,” he says.
“The fact that there’s now a clear trace back to the employer is a fate that, perhaps, that person invited by their own conduct.”
Legal complications of branded clothing ban
When it comes to whether employers can or should create a policy banning employees from wearing branded clothing off duty, Edmonds says that requires an assessment of whether such an expectation is reasonable in the first place.
“Take a small office that shares washroom facilities with other tenants on the floor — if employees are wearing branded uniforms and there’s an expectation they don’t wear them outside the office, there’s a problem: how do they change? They’re not going to take off their clothes in front of colleagues, and if they go to the washroom, it’s shared with other tenants. That can become an unreasonable request,” he says. “This is especially true given certain cultural and religious sensitivities around that kind of thing.”
For employers with unionized staff, creating a ban like this can be particularly problematic, he adds.
While paramilitary employees such as police officers, firefighters, and paramedics generally have rules against wearing uniforms off duty, Edmonds notes they also have the facilities that make that practical.
