‘Football in the Dock’ – Carl Atkinson
Two recent decisions in Employment Tribunal claims, brought against leading professional football clubs, have focused media attention on the behaviour of senior managers and emphasised that any significant decision about employee contracts should be made via the application of the relevant process.
Newcastle United are reported to be dismayed by the decision of the Birmingham Tribunal yesterday to find in favour of Jonas Gutierrez in his disability discrimination claim. A further hearing will now be arranged to consider the level of the compensation to be awarded, but it has been widely reported that Gutierrez has claimed in the region of £2m.
Gutierrez who was diagnosed with testicular cancer during his time at Newcastle claimed that following his return from treatment, he was not selected for some games during the second half of the 2014/15 season in order to avoid triggering a clause in his contract which provided for an automatic one year contract extension. The Tribunal accepted this suggestion and concluded that the reason why the club took this approach was “because they had no longer wanted him at the club because of his cancer”. The Equality Act 2010 specifies that cancer is to be considered a disability and prohibits direct discrimination against workers based upon a physical disability.
Earlier this week the Leeds Employment Tribunal found in favour of former Leeds United employee Lucy Ward in her claim for unfair dismissal and sex discrimination following the termination of her contract by the club. It was alleged that Leeds Club Chairman, Massimo Cellino, decided to sack Ms Ward because she had former a relationship with former head coach Neil Redfearn. The Tribunal concluded that the reasons given by the club for the termination of Ms Ward’s contract were a “sham” and that the real reason for termination related to her gender, which meant the dismissal was automatically unfair. A further hearing will take place in due course to consider the level of compensation to be awarded to Ms Ward.
The recent dramatic decline in the level of employment litigation may have encouraged some employers to adopt a more robust approach to the management of HR issues, but both these cases highlight the importance of correctly implemented procedures in dealing with such challenges. Impulsive and subjective management decisions to terminate employment contracts are frequently identified by the Tribunal, despite efforts to disguise the real reasons for the decision. It is a mistake for businesses to think that they can “tough it out” at a Tribunal hearing because this leaves key witnesses exposed during cross examination. The Judges in both these cases identified the “evasive” manner of some of the management witnesses as being relevant to their decision to support the Claimant’s application.
The investment of management time and resource at an early stage in dealing with challenging HR issues frequently pays dividends in avoiding expensive litigation and negative PR. Businesses which face this type of challenge would be well advised to get experienced advice and support at an early stage to achieve an optimum outcome.
For more information, contact Carl Atkinson via email email@example.com or click here for his profile and areas of expertise.
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