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 4

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.

These are the final tweets in this series of 50, and deal with how to short circuit a performance procedure where the parties are prepared to agree to a mutually acceptable alternative.

Part 1 in this series of tweets dealt with some informal motivational tips, and Parts 2 and 3 covered a typical formal procedure.

Since many people do not want a dismissal for poor performance on their record, they often leave before any procedure is complete, but in some instances, particularly in small organisations, it may be in the interests of the organisation to encourage them to leave more quickly.

In legal terms this is not risk free, so, ‘don’t try this at home’ without HR or other appropriate professional assistance!

UK law currently provides for disputes between employers and their staff to be resolved using a ‘compromise agreement’, and at the present time (Spring 2013) the Government is proposing to introduce new ‘settlement agreements’ which will be simpler and easier to use.

They will be ideal for situations where an employment relationship is not working out due to conduct or performance, but will not be suitable for more complex issues, for instance, where there are discrimination or ‘whistleblowing’ issues involved.

We have seen earlier in this series that everyone has the right not to be unfairly dismissed providing they have been employed for the ‘qualifying period’ (two years or more if they started work with you on or after 6th April 2012).

Put simply, this means that you must have a fair reason for dismissing someone (and poor performance usually is regarded as fair) and you must behave reasonably, i.e. follow a fair procedure, such as is outlined in Parts 2 and 3 of this series, when you dismiss them.

There are circumstances where the length of time this will take is unacceptable from a business point of view, and circumstances where the procedure will be undesirable from the employee’s perspective.

For instance, an employee with long and loyal service may no longer be performing adequately, and it may be more appropriate to find a solution that enables them to leave with some dignity and without having to be put through an elongated process.

It’s only really safe to do this when you are contemplating dismissing someone, and this may mean that it is not worth doing.  If the lack of performance is genuine and you have got as far as Stage 3 in our procedure, there may be little point in not simply completing the process.

So, in many instances, employers want to offer staff an alternative route out of the organisation at an earlier stage.  This may not be quite so safe, but the fact there is not a lot of case law on this topic, suggests that it usually works!

Here’s a series of steps which might lead to an alternative mutually acceptable solution, but remember, don’t do this without appropriate advice from a HR professional or lawyer.

Tweet 37/50: Discuss your performance concerns with the employee and tell them that you intend to start a disciplinary process which would start with a hearing and could lead to them getting a warning.

Tweet 38/50: They will be given the opportunity to improve, but if they cannot improve after being warned, it may lead to their dismissal.

Tweet 39/50: Indicate that if they would prefer to have a ‘without prejudice’ (wp) conversation regarding a mutually acceptable alternative termination arrangement, then you would be happy to have that conversation.

Tweet 40/50: Give them time to think about the situation, pressurising them may lead to a constructive dismissal claim.

Tweet 41/50: If they agree to proceed on a wp basis there and then, you can proceed but take the precaution of having another senior person present to ensure that there is no subsequent argument as to the nature and content of the discussion.

Tweet 42/50: Emphasise that you would be happy to give them the opportunity to improve, but if they don’t think they can, or they don’t want to go through a series of warnings, you are happy to propose an alternative.

Tweet 43/50: Indicate that an alternative approach would involve them signing a compromise agreement.  This would prevent them from bring claims against the organisation in the future, but in return for this they would receive an ex gratia payment.

Ex gratia payments are not always made, but are usual.  There may be some circumstances where it is simply agreed that the individual departs with pay in lieu of notice.  This may be the case, for instance, where the person’s performance is bordering on negligence, and they are fortunate to be given the opportunity to leave without a dismissal for poor performance on their record.

Tweet 44/50: Make a proposal with regard to the ex gratia payment.  You may have some negotiation about this and other issues such as notice payments and outstanding holidays etc.  Any settlement above their contractual rights would normally be tax free for the first £30k.
Tweet 45/50: If they do not want to go down this route immediately, you should proceed with the invitation to the disciplinary hearing, but verbally indicate that the offer of a wp discussion (or the offer if you have got as far as making one) is on the table for a few days.

Tweet 46/50: If the offer is not accepted, have your hearing and if justified issue a warning (or dismissal if you are at that stage) in line with your contract/staff handbook, or follow the procedure outlined in Parts 2 and 3 of this series.

Tweet 47/50: There is nothing to stop you leaving the door open on the wp conversation, regardless of the fact that you are commencing with the disciplinary/performance procedure.  But don’t leave it indefinitely; they’ll be little to gain from reaching an agreement after you have expended your time and energy on a fair process – assuming that there are not other issues such as discrimination or ‘automatically unfair dismissal’ involved.

Tweet 48/50: As ever, you should draft written notes of any meetings, and mark all correspondence based on the wp discussions as ‘Without Prejudice and Subject to Contract’.

Tweet 49/50: If they do agree to a deal, you will need to confirm the details in writing, and arrange for a compromise agreement to be sent to them.

Tweet 50/50: You will have your own, and it is normal to make a contribution to their, legal costs.  Their solicitor may well come back to you on details of the proposed agreement, but after agreement is reached it will be for you (or your representative) to finalise the compromise agreement and send it to the employee for signature.

Tweet 44/50 may take a few meetings, and it is quite normal in these circumstances to agree a mutually acceptable termination date, and for the person to leave before the agreement is signed.

In this series of 50 tweets we have suggested informal, formal and alternative approaches to dealing with a poor performer.

The various steps should be seen as a model/sample approach, which cannot in any way be taken as a substitute for seeking professional advice on any particular situation.

The approach is offered as a way of encouraging the tackling of performance problems in the workplace, and to give managers confidence to initiate conversations about their concerns.

Above all, it should be remembered that prevention is better than cure, but poor performance can be an infectious disease that should not be allowed to spread!

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!