In the news this week has been the speculation over Manchester United’s decision in respect of their player, Mason Greenwood. Greenwood was charged with rape and assault, but the charges – which he denies – were dropped back in February. We learnt yesterday that Greenwood’s time with the club would be brought to an end by mutual agreement.
It’s a situation which is familiar to employment lawyers, albeit usually in less high-profile circumstances: an employee is accused of a crime and the employer needs to decide how to react.
Often, an emotional response is triggered in the employer, particularly if the allegations involve sexual misconduct or violence. Many managers would be forgiven for learning of allegations of abhorrent criminal conduct and wanting to act quickly and decisively.
However, it’s important to proceed with care and within the framework of the employee’s legal rights. I’ve set out below some key principles.
Crime (or an alleged crime) does not equal a fair dismissal
If an employee has at least two years’ service, they have the statutory protection against unfair dismissal and therefore their employer has to follow a fair procedure and ensure they have a fair reason before terminating their employment. The decision must be within the range of reasonable responses available to the employer, taking all the relevant circumstances into account.
In other words, the employer has to investigate and make up their own mind and a knee-jerk reaction to allegations or even criminal convictions, will rarely be appropriate.
This is made clear in the ACAS Code of Practice on Disciplinary and Grievance procedures which provides:
“If an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.”
Would a conviction for possession of cannabis mean that a dismissal is fair? It’s a question that cannot be answered without the contextual detail. Relevant factors would be the nature of the job and how the conviction impacts on the employer, its reputation, its other staff and its customers.
But an employer does not have to wait for a criminal conviction before dismissing
It’s common for an employee to protest their innocence or point to the fact that they have been acquitted or the charges dropped as a reason why they should not be dismissed or why their dismissal was unfair.
This is usually not a compelling argument for three reasons.
First, criminal liability is a high threshold. In trials, a jury has to be sure beyond reasonable doubt that the crime was committed. By contrast, the threshold in misconduct dismissal cases, decided by the Employment Tribunal, is much lower. An employer has to satisfy the “Burchell” test, which is to establish that they held a reasonable and genuinely held belief that the misconduct took place and that their belief was based on a reasonable investigation.
So, for example, it can be legitimate for an employee accused of theft to be dismissed fairly based on the information available to the employer, even though the police have not pursued a conviction or the individual has been found not guilty.
Second, there is the potentially fair dismissal reason of “some other substantial reason”, usually referred to as “SOSR”. SOSR is something of a catch-all option when a dismissal is fair but is not one of the other potentially fair reasons of conduct, capability/performance, redundancy or contravention of a legal duty (such as a driver who loses his driving licence and is unable to carry out his job).
It’s quite possible that someone who is wrongly accused of a crime could be dismissed fairly for some other substantial reason. If the allegations make it not possible for them to continue in their role, perhaps because of pressure from colleagues, the public, customers or other stakeholders, then I can see a dismissal being fair in that context.
Third, an employer does not have to wait for the outcome of any criminal prosecution before taking action, which might not be known for months or years. As above, the employer has to investigate and come to a view about whether or not disciplinary action is appropriate.
What if the employee is unable to engage with the investigation process or carry out their job?
If the employee is in custody or on remand, the employer will have to consider for how long it can hold their job open. It may be possible to say that the employment contract has been “frustrated” by the employee’s time in prison. The frustration of a contract is when, due to outside factors, the performance of the parties’ obligations is rendered impossible.
The true frustration of a contract is rare in practice and dismissals are more common in these situations. Sometimes employees will refuse to engage with the disciplinary process, but this does not prevent an employer from taking action. The individual can be given a reasonable timeframe in which to respond and be warned that a decision may be made without their input if they don’t.
Although we are unlikely to ever know all the relevant details, it seems likely that the outside pressure to end Mr. Greenwood’s long tenure at the club has decided the outcome, as is so often the case for an employer in the public eye. The statement issued by the club states that he did not commit the offences but that “all those involved, including Mason, recognise the difficulties with him recommencing his career at Manchester United”.
Aside from most employers being able to make decisions about employees much more discreetly, I should also recognise that unfair dismissal law has little relevance to the world of Premier League footballers and, in reality, it will be the terms of Mr. Greenwood’s contract that will be relevant to any agreed termination. The compensation which can be recovered in such a claim is limited, currently to a little over £100,000 at present, but depending on the circumstances. However, the principles I’ve set out above are of much more relevance to a typical workplace.
The Workers (Predictable Terms and Conditions) Act 2023, creates a statutory right for qualifying workers to request a more predictable pattern of work. This right works similarly in a few ways to the right to request a more flexible working pattern.
The Employment Relations (Flexible Working) Bill has now completed its journey through parliament and the Employment Relations (Flexible Working) Act 2023 is currently awaiting Royal Assent. What is changing?
Fans of Radio 4’s The Archers will be aware that Brian has sacked Stella as the manager of Home Farm. The background is that Stella spent £150,000 on a new seed drill without Brian’s approval so he has decided to treat the matter as gross misconduct and dismiss her with immediate effect. Stella has taken advice and has been told that she has a good claim of unfair dismissal and possibly sex discrimination too (apparently on the basis that so few farm managers are women). Leaving aside for one moment the fact that The Archers is a work of fiction, does Stella have a claim?
Legislative changes to the employment law landscape tend not to happen too often in the UK, but like buses, this week a few seem to have arrived at once with the publication of the UK Government’s policy paper “Smarter regulation to grow the economy”, which sets out various proposals for changes to existing legislation and the introduction of new legislation.