Tackling the Issue of Demotion …

Feb 06, 2012

... Without Conceding the Maximum Penalty

With the media being full of John Terry facing criminal proceedings for alleged Race Discrimination and Fabio Capello now being accused of breaching his contract for speaking out against the decision by the FA to strip John Terry of his captaincy, as an employer, you would be forgiven for asking the question, why has the decision been made to demote someone before an investigation or a formal hearing has been held and why can’t I do that?

Often there are high profile cases in the media, involving celebrities, which cause confusion for employers on how to best deal with a situation that could lead to the demotion or dismissal of a member of their workforce.  If the poor unsuspecting employer were to look at the recent case relating to John Terry for inspiration on how to solve their own employee relations situations they could end up in a bit of a sticky situation.

If you were sourcing advice today on an employee who was alleged to have made comment to another employee of a discriminatory nature, you would be advised to suspend the employee pending an internal investigation.  Once the investigation was complete, if there were sufficient evidence, then, and only then, would you be able to call the employee to a disciplinary hearing, which could result in the termination of their employment.  Of course, depending on the severity of the situation and on the provision within your Contract of Employment or Disciplinary Procedure, you may be able to disciplinary demote.

What is worth remembering, is that John Terry, made these alleged comments whilst working for another employer (Chelsea), however, his secondary employer, the Football Association have taken the decision to suspend him from his position as Captain of the England team.  More importantly neither team has suspended him from playing whilst the investigation is ongoing.  It is important to note that for the majority of employers, failure to suspend whilst investigating an allegation could lead to any subsequent dismissal to be seen as unfair, regardless of the outcome of any criminal investigation.  Bear in mind, that as an employer, you are not looking for 100% proof as in Criminal Law; in employment law you will need to have reasonable belief based on reasonable evidence when reaching your decision.  In this case, the well publicised You Tube footage would have been considered to be reasonable evidence under employment law.

This case, poses so many questions.  So, can you suspend an employee for something they have allegedly done in another workplace? Well, in short, the answer would be probably not.  However, in this case, it will be because the media coverage is bringing the England team into disrepute. 

And can you as an employer consider Breach of Contract if the Manager publicly criticises your decisions in the local press? Without being too vague here, the answer would be ‘possibly’.  However, you have to consider the actual consequences of their actions on your business.

What is often worth remembering is that from the beginning of this month, the maximum penalty for Unfair Dismissal is £72,300, which is a steep climb for the average small business, but small change for the Football Association and one they readily accept.  Is it worth cutting corners when you could end up taking a home goal costing your business tens of thousands of pounds?

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