It’s not cricket

18 08 2008

Last week we heard about the award of £4.5mn compensation to Ben Collett, the former Manchester United player who had his leg broken in a match against Middlesbrough five years ago.  Another footballer, Adrian Mutu, formerly of Chelsea, also made the non-sports pages for being ordered to pay his former club £13.68mn in compensation.  Mutu was one of the first players brought in , for £15mn, following the Abramovich takeover and one of the first out after he tested positive for cocaine. Chelsea sacked him for gross misconduct in October 2004.  He was banned from football for seven months and when that was lifted he went to Juventus and was subsequently sold by them to Fiorentina, for whom he now plays.

Chelsea didn’t receive a transfer fee for him  when he left and they subsequently took action against him to recover the transfer fee and wages. Initially the world governing body, FIFA, refused to allow Chelsea to sue Mutu, but that was overturned by the Court of Arbitration for Sport.   Mutu has said that he will appeal the “inhumane sentence”.  Poor love.

What does the law say in this situation?  Well, Mutu was sacked for gross misconduct, which is  a potentially fair reason for terminating a contract of employment.  Provided the employer has reasonable grounds for believing the  (serious) misconduct occurred then the dismissal will be prima-facie “fair”. The Employer will need to show that dismissal was a “reasonable response” to the misconduct.  In the case of a Premiership footballer, supposedly setting a good example to fans and being a role model to youngsters, Chelsea would not have had much difficulty proving this was the case.  However, in the case of “ordinary” employees working in banks, law firms, shops etc. would the same be true? 

Much will depend on where the misconduct took place.  If, to follow the Mutu example, the drug taking took place outside of office hours, away from business premises, whether the dismissal will be fair will depend on what steps the employer took to make it clear that such behaviour was unacceptable. What does the contract or employment handbook say? Does it spell out that such behaviour, even in the employee’s “own time” will be a serious disciplinary matter?  If yes, then the employer may be able to justify their decision to terminate the employment if the problem arises provided they had a genuine belief that the offence had occurred, thus avoid a finding of unfair dismissal against them.  On the other hand, if nothing is stipulated then the final decision will rest on a very careful analysis of all relevant facts by the Employment Tribunal.  In all cases it is imperative that the employer follows the correct and proper disciplinary process, particularly to avoid any suspicion that the misconduct is, in fact, a smokescreen for the real reason for dismissal.  By way of example, in 2003, a woman was dismissed former job, allegedly for gross misconduct, but she argued that although she had made mistakes, the real reason for being sacked was because she was pregnant. 

The other issue with gross misconduct cases is that criminal behaviour will not necessarily give an employer carte blanche to dismiss.  In 2000 an Arsenal fan, being a postman, was spotted on TV kicking a Galatasary supporter in the head at the final of the UEFA Cup in Copenhagen.  He was sacked on his return.  He subsequently won his case at the Employment Tribunal.  The moral for employers is, if you want to regulate your employees’ behaviour outside work and prevent damage to your reputation, spell out what sort of conduct is unacceptable in the contract of employment/employment handbook and proceed with great caution if the situation arises.

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