Why would Mark Sampson go to an Employment Tribunal?

The papers last weekend predicted that Mark Sampson, the recently departed Manager of the England Women’s’ Football team would go to an #Employment #Tribunal and claim either unfair dismissal (The Telegraph) or wrongful dismissal (The Times).

FA Arbitration rules may mean that talk of a Tribunal is completely misplaced, but what’s the story so far, what does it tell us about handling this type of situation, and what sort of case would Sampson have in front of a Tribunal.

Firstly, the story as it appears in the press seems to be that Sampson was recently accused of making racist remarks to two players, Drew Spence (how many times had she been arrested) and Eli Aluka (a reference to her relatives not bringing Ebola with them from Nigeria).

Sampson denies these allegations, and was twice cleared by an investigation instigated by the FA.

Dramatically, last Wednesday (20th Sept 2017) Sampson’s employment was terminated, and a third investigation into the racist remarks was launched. The sacking was as a result of a re-examination of an earlier investigation into an incident whilst Sampson was at the Bristol Academy between 2009 and 2013.

This was despite this previous investigation concluding that Sampson did not pose a risk (and only recommended he attend a course) the FA said

“it is our judgement that it (the report) revealed clear evidence of inappropriate and unacceptable behaviour by a coach” (FA Statement).

Secondly, let’s look at how this has been handled.

Football does not have a good record on these types of issues. In 2014 Richard Scudamore (Chief Executive of the Premier League) drew the wrath of politicians as a result of sexist remarks made in emails, and last year we saw both Chelsea FC and Jose Mourinho in front of an Employment Tribunal over the constructive dismissal of their first team doctor.

On Monday 26th September 2017 the FA made a further statement backing their Chief executive (Martin Glenn), but questions about the procedure are clearly being asked. Several FA officials are likely to have to face parliamentary scrutiny in October.

It is reported that Sampson was sacked with a £20k pay off, and we probably will never know if this is true. He could well have concluded a deal covered by a settlement agreement committing both parties to respect confidentiality, or he may have been sacked pending negotiations of a settlement.

There are four issues to think about when in this situation.

1. It would probably have been reasonable for the FA to have taken the Bristol report into consideration if it was concluding that there had been racist remarks or other related behaviours, but to sack on the basis of an old incident, when no action was taken at the time, is unlikely to get across the required threshold of reasonableness at a Tribunal.

2. There may be an angle that Sampson should have declared the Bristol incident at his interview, but after an exceptional record in terms of results, it would probably be hard to sustain this as a fair reason for dismissal.

3. The FA could have met with Sampson when their attention was drawn to the old report, and opened negotiations about a settlement agreement as an alternative to a third investigation possibly concluding that he be sacked for gross misconduct. Indeed, this may well be what happened – the FA Statement (see above for link) does say

‘we have acted quickly to agree a termination of Sampson’s contract’ (notice the word ‘agree’ – does that mean the FA Board agreed, or that they agreed with Sampson!)

They clearly had substantial reputational issues which would have legitimised this approach, although the danger of white washing allegations would obviously be present.

4. They may have felt that the PR surrounding this case was severe enough to dismiss without a reasonable procedure or a settlement agreement. This is the ‘fire and be damned’ or the ‘walk to the car park’ approach.

They will have been advised about the risks and decided to sack Sampson and negotiate from there.

Thirdly, what are Sampson’s possible claims?

If he was just sacked for gross misconduct because of the Bristol incident, then this could give rise to an unfair dismissal claim, but compensation will be limited to about £80k. He was reputed to be on up to £150k, so £80k does not look very attractive. Many of us would also lose some of that compensation in lawyer’s fees (say £15 to £20k for a two-day Tribunal) but he may have the benefit of representation costs covered by a professional body.

He may also have a claim for wrongful dismissal if, for instance, the FA were in breach of a contractual disciplinary procedure, or did not give him his contractual notice. For this, his compensation would be capped at £25k in a Tribunal.

He apparently had two years to run on his contract, so there may be other contractual breaches which he could choose to pursue in a High Court, which would overcome the £25k cap in a Tribunal.

What’s he likely to do?

The FA and Sampson’s lawyers are probably talking.

If settlement negotiations have not already started or even concluded, Sampson has 3 months to go to an Employment Tribunal and six years to a High Court. He may well feel that his career in football in the UK is finished, and therefore the FA has much more to lose from protracted Tribunal or Court action.

So, if behind the scenes negotiations don’t go in his favour, litigation could proceed as a tactic for extracting more out of the FA, because of the potential for negative PR, than he would otherwise get from a Tribunal or Court.

It is likely to be a test of nerves, unless his lawyers can come up with something else such as discrimination. This would open the possibility of a claim for lifetime loss of earnings.

Perhaps, something to do with a Welshman managing an England team, but that’s another story!

My own view – it won’t get to Court, but I said that about the aforementioned Chelsea affair and it ran for two days in a Tribunal before they settled!

Ken Allison | 27 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

How to deal with a poor performer in 50 tweets…Part 3

This blog (originally published in March 2013) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

In Part 1 of this series of tweets I looked at 10 tips for encouraging good performance without having to resort to formal procedures.

Part 2 explored ‘Stage 1’ of a procedure that might be used when someone fails to respond to the motivating behaviours of their manager, and they need to understand that the continuing level of performance is not going to be tolerated indefinitely.

In this final part of this series I will look at how to continue with a procedure that, as far as it is possible, will ensure that if it comes to it, any dismissal will be fair.

You may have got this far without any specialist HR assistance, but if this is the first time you have used such an approach, you would be well advised to seek some HR or legal advice for the first time you do this.

When dealing with poor performance under a disciplinary or capability procedure, or just by following the steps in these tweets, it’s important to focus on improving the performance.

Giving somebody a warning should not be designed to encourage them to leave, it should be designed to encourage an improvement in the performance. If that’s achievable, it’s a much more cost effective solution than somebody leaving.

So, on with our last 20 tweets, and what would normally be described as Stage 2 of the procedure!

Tweet 31/50: Start again at tweet 16 – as modified below!

Meet with them and let them know that since the previous warning has not resulted in the required performance improvement, you will now have to move onto the next stage.

    Let them know that you want to discuss the situation at a meeting that may lead to a further warning. You will confirm the details in writing

Keep your eye on the ball here. Your goal should still be to get the performance improvement you are after. We will call this ‘Meeting 2’

Confirm ‘Meeting 2’ in writing and make it clear what your concerns are about. As well as this, deal with domestic details (time, place, who will be present etc.) and you should include any documentary evidence to which you will refer and advise them of their right to be accompanied. There are lots of useful templates for letters to deal with this type of process at http://www.acas.org.uk/index.aspx?articleid=1439.

Avoid unnecessary delay before meetings, but do give enough time to prepare. Usually, unless the issues are very complex, a couple of days may be adequate time for preparation, particularly when there have been extensive informal discussions. Your procedures may require a specific notice period for a meeting – typically 5 or 7 days.

If they ask for someone to speak in support of them (a witness), you will have to give the matter some consideration. You can ask them to get their witness to write a statement, rather than attend a meeting, but, in any case, employees rarely do this for performance issues. It is more common when you are dealing with poor conduct.

‘Meeting 2’, explain the issue (the performance shortfall and its impact), outline the evidence, hear what they have to say, and thoroughly discuss, before making your decision. You should be concentrating on the performance of the individual since ‘Meeting 1’, try not to dwell on stuff from further back!

If they have brought a companion with them, check if they have anything they want to say. They have a statutory right to ‘address the hearing’.

It is normally recommended that you have an adjournment before making a decision.

Assuming you decide to proceed with another warning, reconvene if you have adjourned and, deliver a warning (you can call it a second warning if that is what your procedure calls it).

Explain how you have arrived at your decision, demonstrating that you have heard any points that they have expressed.

Clearly confirm the performance issues, the standards you are looking for, the review period, additional support that might be available, and the consequences of the improvement not happening. Remember that if there is insufficient improvement this time, this may lead to the termination of their employment, and they need to be told this.

Tell them everything will be confirmed in writing and advise them of any right to appeal.

As last time, try to end on a positive next step. ‘I’m going to arrange for somebody in the Finance Team to sit down with you and see if there is a better way of organising the way you are keeping your records’.

Confirm everything in writing!

Make sure there is regular support during any review period – it will help ensure that the employee takes your concerns seriously.

You will have just completed ‘Stage 2’, what in many organisations will be called a ‘second written warning’.

So now things are getting serious, and the process so far may have taken you a month or two.

Tweet 32/50: Surprise, surprise, its back to Tweet 31/50 above, but this time around things will be a little different.

Adapt the bullet points above to reflect the fact that a possible outcome of this ‘Stage 3’ is that the employee could lose their job. You will need to review the situation thoroughly, and this time round you definitely will need to adjourn before you make your decision.

Tweet #33/50: Assuming you decide to dismiss (another option could be to extend their review period) tell them they will be dismissed and do it face to face. This will usually be with immediate effect with their pay in lieu of notice (check on the contractual and tax implications of this), outstanding holiday pay and compensation for any other benefits (Company car etc.) they are losing. Everything will be confirmed in writing and advise them of any right to appeal.

Tweet #34/50: Depending on the individual’s contract, you may decide to ask them to work out their notice (very unusual for poor performance situations) or put them on ‘garden leave’ in order to preserve any restrictive covenants – take some advice!

Tweet #35/50: Confirm everything in writing!

So, there we have it. How to deal with a poor performer in less than 50 tweets. So where have the rest gone?

They’re in Part 4, which covers how to arrive at an alternative solution that does not involve the need to follow this process which can often take two or three months, and be difficult for both the employee and the manager.

Tweet 36/50: Read on, the rest is available now!

Ken Allison | 27 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

 

How to get rid of a poor performer in 50 tweets…Part 2!

This blog (originally published in February 2013) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

In Part 1 of ‘How to get rid of a poor performer in 50 tweets’ I explored some tactics for avoiding getting as far as thinking about having to dismiss someone who is not performing.

Parting company with someone is expensive and time consuming, but nonetheless, sometimes necessary.

In the UK, where everyone has the right not to be unfairly dismissed once they have accrued the ‘qualifying service’ of one or two years service (the law changed on 06 April 2012), anxieties about falling foul of the legislation can prevent managers taking decisive action when an employee is failing to respond to concerns about their performance.

‘It will take too long’, ‘HR won’t back me’, ‘they’ll accuse me of harassment’ are frequent concerns.

The main thing to remember is that the law seeks to strike a balance between the employer who needs staff who can do their job, and the individual who needs to be treated fairly (told clearly, given the opportunity to improve, warned etc.).

Essentially, much of this process of ‘fairness’ is covered in the ACAS Code of Practice 1: Disciplinary and grievance procedures, (pick up an A4 ‘mindmap’ aide memoire) and many organisations will have their own procedures for dealing with this sort of issue.

If the employee you are dealing with does not have the ‘qualifying service’, you may decide not to follow this sort of procedure, but before you do that, check out ‘Has it really got easier to dismiss employees’.

Here I deal with the process for dealing with a poor performing employee who has the ‘qualifying service’ and has not responded to your informal efforts to improve their performance – see tweets 1 to 10!

Tweet #11/50: It’s the job of managers to set and uphold standards. Employees must be told what the standards are. You will need to be able to demonstrate that you have fulfilled your responsibilities in terms of providing any appropriate training if the employee is being asked to do something new, or if it is something that they could not have reasonably have expected to be able to do.

Tweet #12/50: Don’t be afraid of saying ‘this is how I want it done’. The ‘I’ word is very powerful, avoid blaming ‘the Company’ or ‘my boss’.

Tweet #13/50: You can move the goal posts, as long as you behave reasonably when you do this. Change is an accepted fact, and Employment Tribunals (ETs) accept that the content and standards of a role may change over time. How a job is performed, or the standards required are rarely contractual, but employers do owe employees a duty of ‘trust and confidence’ which in this context would mean, amongst other things, that changes should not be introduced without time to adapt, or as a means of making life uncomfortable for staff.

Tweet #14/50: Make sure that the problem really is the individual’s capability to do the job. If they have the skills, and are just not using them, then that could be poor conduct, and not poor performance.

So, let’s now assume that we are dealing with an employee who is not performing adequately, has not responded to our informal motivation (Tweets 1 to 10!), and so now we have to put things formally in order to ensure that they take the issues more seriously, and that we have evidence of a fair process should we not be successful in improving their performance.

Tweet #15/50: Write notes on your final ‘informal’ discussion – the one before you start to use the language of ‘warnings’. Writing notes during a discussion usually has a negative impact on the atmosphere, so you won’t want to be doing it at every meeting. You will, however, benefit from evidence that you tried to tackle the performance issues informally. You can write notes after a meeting (ETs accept contemporaneous notes as evidence, and this usually means written during a meeting or within 48 hours afterwards). In any case, it will be useful to have informal discussions confirmed in writing.

Tweet #16/50: Meet with them and let them know that since your informal discussions have not resulted in the required performance improvement, you will now have to move onto more formal action. Don’t worry if you do not have an organisational policy that covers this situation (much to a lot of people’s surprise, the law does not require you to have one), it is what you actually do that matters.

Tweet #17/50: Let them know that you want to discuss the situation at a meeting that may lead to a warning, and that you will confirm the details in writing. Keep your eye on the ball here. Your goal should still be to get the performance improvement you are after. We will call this ‘Meeting 1’.

Tweet #18/50: Confirm ‘Meeting 1’ in writing and make it clear what your concerns are about. As well as this, deal with domestic details (time, place, who will be present etc.) and you should include any documentary evidence to which you will refer and advise them of their right to be accompanied.

Tweet #19/50: They will need to know that the meeting could result in a warning – in most instances this will be referred to as a ‘disciplinary warning’, but some organisations have separate procedures for performance issues where it may be called something like a ‘performance improvement note’.

Tweet #20/50: Avoid unnecessary delay before meetings, but do give enough time to prepare. Usually, unless the issues are very complex, a couple of days may be adequate time for preparation, particularly when there have been extensive informal discussions. Your procedures may require a specific notice period for a meeting – typically 5 or 7 days.

Tweet #21/50: If they ask for someone to speak in support of them (a witness), you will have to give the matter some consideration. You can ask them to get their witness to write a statement, rather than attend a meeting, but, in any case, employees rarely do this for performance issues. It is more common when you are dealing with poor conduct.

Tweet 22/50: At ‘Meeting 1’, explain the issue (the performance shortfall and its impact), outline the evidence, hear what they have to say, and thoroughly discuss, before making your decision. You will want to avoid over formality at this stage, but you might find our ‘Handling Disciplinary Hearings’ checklist to be a useful guide.

Tweet #23/50: If they have brought a companion with them, check if they have anything they want to say. They have a statutory right to ‘address the hearing’.

Tweet #24/50: It is normally recommended that you have an adjournment before making a decision, but this is probably unnecessary for ‘Meeting 1’. ETs have accepted that formality is less important with performance issues than it is with conduct. An adjournment is probably only necessary if the employee introduces things that have not been said before, and that need further consideration.

Tweet #25/50: Assuming you decide to proceed with a warning, reconvene if you have adjourned and, deliver a warning (you can call it a first warning if that is what your procedure calls it).

Tweet #26/50: Explain how you have arrived at your decision, demonstrating that you have heard any points that they have expressed.

Tweet #27/50: Clearly confirm the performance issues, the standards you are looking for, the review period, additional support that might be available, and the consequences of the improvement not happening. Tell them everything will be confirmed in writing and advise them of any right to appeal. Most organisations allow appeals after any disciplinary action, but some only allow it after higher levels e.g. second or third.

Tweet #28/50: End on a positive next step. ‘So I’d like you to arrange to spend a few hours shadowing Joe who is good at cold calling, and see how he does things, then we’ll meet next week to review that and talk about how to improve X and Y’.

Tweet #29/50: Confirm everything in writing! The law does not require you to do this (and even the ACAS Code of Practice only says ‘it is usual’), but a failure to do this may make a case difficult to defend in front of an ET.

Tweet #30/50: Make sure there is regular support during any review period – it will help ensure that the employee takes your concerns seriously.

So, here in Part 2 we have completed the first stage of a reasonable procedure for dealing with poor performance where an individual has failed to respond to informal encouragement.

In many case there is no need to progress any further. The individual either improves or leaves!

In Part 3 we will look at completing this procedure, and also the alternative approach of agreeing an alternative mutually acceptable termination arrangement which in many instances will avoid the need to put the individual through an elongated procedure.

Watch this space!

All of these ideas are regularly explored in our employment law and http://www.paradigmpartners.co.uk/performance-management.htm courses.

Ken Allison | 19 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

The end of compromise agreements!

This blog (originally published in July 2014) is being reposted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

July 29th sees the demise of the compromise agreement, but don’t panic, they are simply being renamed ‘settlement agreements’.

Over recent months we’ve had a lot of questions on our helpline or at training events and presentations about this much-heralded change.

It was forecast to be implemented in ‘late summer’, so obviously the Department for Business Innovation & Skills knows something about how long this hot spell is going to last. To my surprise they announced about a week ago, that late summer was going to be 29th July.

A key question on some people’s minds has been whether it has been worth putting off a discussion which may lead to a termination of employment until the changes take place.

The answer to this question has been, that not a lot is changing, so that in many cases it has not been worth waiting. The change does, however, make a difference to the part of the process that most employers find difficult, namely, initiating the conversation.

Up until now, it has been necessary to have a ‘without prejudice’ conversation, and strictly speaking these are only possible where there is an existing dispute between the parties.

Exceptions to this requirement include straightforward dismissals of employees who have not accrued the qualifying service for an unfair dismissal claim (see how to handle these situations) or situations where an employer is making a settlement payment that is sufficiently generous to prevent a Tribunal claim.

If conversations are genuinely without prejudice, then they usually cannot be quoted in Court or at a Tribunal.

As of 29th July, providing there is no improper behaviour (such as a threat to dismiss if you don’t agree) an offer to end an employment relationship on agreed terms will not be quotable in an unfair dismissal claim.

This should mean that it will be possible to have a more straightforward conversation without the ‘war dance’ of ensuring that it is ‘without prejudice’. This, in turn should prevent aggrieved employees resigning and claiming constructive dismissal, which has been the main fear in the past.

‘Things are not working out, so I’d like to discuss a deal with you that would enable you to leave if you wanted to with a settlement payment’ should be become possible.

So, is it really becoming much simpler? I’m afraid the answer is probably no – there are still issues to look out for:-

1. All the other conditions that we associate with compromise agreements remain the same for settlement agreements. Principally, the final agreement has to be in writing, and the employee has to have legal advice from an approved person (usually a lawyer).

So agreements of this nature are not likely to become less costly to implement, which was one of the hopes when the Government first announced these proposals.

2. Discussions will still be quotable (unless they comply with the terms of being ‘without prejudice’) where dismissal has already taken place, or where there is discrimination, automatic dismissal or ‘whistleblowing’ involved.

3. The new Acas Code of Practice on Settlement Agreements suggests that employees should be given at least 10 days to consider an offer. To give less, may constitute ‘improper behaviour’.

4. The ACAS code recommends (although it does not require) that companions should be allowed to attend pre-termination negotiations.

We will have to see how all this works out in practice, and in order to avoid being an early case in front of a Tribunal, many employers will probably prefer to stick with trying to ensure that a conversation is properly ‘without prejudice’.

There is currently very little case law about ‘without prejudice’ discussions in straightforward terminations which are genuinely to do with poor performance, conduct, attendance, or issues such as relationship breakdowns.

This suggests that initiating conversations are not as difficult as is imagined. It is therefore likely that the main impact of this change will be in changing employer confidence, and so issues may be tackled more directly rather than being avoided.

Together with other 29th July changes such as the introduction of Tribunal fees (subject to the judicial reviews being sort by Unison and others), and the capping of unfair dismissal awards to the greater of a year’s salary or £78,600, we may see greater confidence to tackle issues, and less Tribunal claims.

We shall see!

Ken Allison | 27 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!