Fairness of dismissal for gross misconduct: What do you think?
Keogh’s contract was terminated last month for gross misconduct after he was involved in a car crash which saw his teammates Tom Lawrence and Mason Bennett convicted of drink driving.
The hearing was held last week, and it is understood Keogh was informed of the club’s decision with club chairman Mel Morris.
Derby County sacked their captain for gross misconduct over his involvement in a crash that led to the arrest of two of his team-mates.
Keogh sustained knee ligament damage and was ruled out for up to 15 months after Tom Lawrence crashed into a lamppost last month. His two team mates later pleaded guilty to misconduct.
The decision is even more surprising when you consider that Keogh had made 356 appearances for the Rams since joining in 2012 and was club captain.
The Championship club said in a statement at the time that they had “completed the disciplinary hearing regarding Richard Keogh in respect of his involvement in the events of Tuesday, 24 September” and that his contract had been “terminated with immediate effect”.
“As we have said from the outset, the club will not tolerate any of its players or staff behaving in a manner which puts themselves, their colleagues, and members of the general public at risk of injury or worse, or which brings the club into disrepute,” they said.
In contrast, his teammates were fined six weeks’ wages by the club, while Derby magistrates’ court ordered the players to carry out 180 hours of unpaid work, gave them a 12-month community order and banned them from driving for two years. Both teammates, despite their punishment, remain at the club.
Understandably there’s been lots of conjecture following the sacking of Richard Keogh – with many questioning why the club captain has been sacked, yet Mason Bennett and Tom Lawrence have kept their jobs.
Clearly however, his role as captain and the added responsibility the position brings was a factor in the decision to sack him for gross misconduct.
It is reasonable to consider that Derby County felt he should have taken more responsibility on the night in question, perhaps refusing to get in the car; preventing the teammates from driving in the first place; or simply arranging a taxi. These reasons, coupled with a serious injury sustained through a non-football activity, are perhaps the key reasons why the club have felt it necessary to terminate Keogh’s contract.
However, there are certainly questions to be asked about the real reasons for the dismissal. Keogh was 33 years old; paid around £25,000 per week and was coming to the end of his career and he was not driving. He did not receive a criminal record. In contrast, his teammates (one who was the driver and has been convicted of a criminal offence) were in the early 20’s and have played almost every minute of the matches since.
Was this therefore a convenient way to end an expensive and ageing players’ contract? – They have clearly not taken the same approach to the younger, less expensive players.
It is also understood that Derby offered Keogh a revised deal on reduced wages before he was dismissed which in itself suggests that there was a different motivating factor behind the decision.
Outside conduct and dismissal
Dismissal for conduct outside of work is nothing new. It is a balancing act of the employee’s right to privacy and the employer’s right to protect its reputation.
A few years ago, another football club, Sunderland FC’s needed to protect its reputation in the case of Adam Johnson who was imprisoned for sex offences. Derby County are now doing the same.
However, the nature of the club’s reputation means that it cannot wholly be considered a ‘normal employer’. Clearly balancing fairness is more difficult if your employee and their actions are likely to be spread luridly on the front page of every national tabloid.
But what about other employers?
It is useful to note ACAS guidance on the effect criminal activity can have on the employment relationship. Their guidance states “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.”
In this case, the footballer is able to carry out their job after the misconduct, save for the fact he has injured himself. Being a passenger while inebriated is not a criminal offence and his ‘misconduct’ was therefore not particularly serious and his relationship with teammates is unlikely to be particularly damaged by this own behaviour. In this, case it would seem publicity and money come before fairness.
Conduct that results in a custodial sentence can potentially “frustrate” an employment contract, bringing it to an end automatically. Likewise, other conduct could frustrate a contract, as in this case where the footballer is now injured and unable to fulfill his obligation of playing football for which he is paid.
Frustration means that the requirements of the contract cannot be fulfilled. An employee, a footballer, offers work in return for a wage; if the employee cannot attend work or play matches, they cannot fulfill the terms of their contract. The footballer is now unfit to work for 15 months and it is arguable that his conduct and decision making has frustrated his contract with the club.
However, frustration is rare for ‘normal employers’ although there is a potential argument in the case of Derby County.
All employers will have to use their own judgment on a case by case basis. If someone is employed and later acquires a criminal record, this may call into question their suitability for the role. However, the employer should not have a knee-jerk reaction to the commission of the offence; they should consider what bearing, if any, the offence has on the role, having regard to the factors outlined above.
So, what practical steps can an employer take in these circumstances? We would recommend an employer should think about:
- Whether the employee is able to carry out their work after the misconduct.
- The relevancy of the conduct to the workplace and the risk to their reputation.
- Possible damage to the relationship the employee has with their colleagues and customers.
- Any steps they could take to allow the employee to remain in their employment without jeopardising their business.
- The seriousness of the offence.
- Whether there is a pattern of offending or other relevant matters.
- The circumstances surrounding the offence and the explanation offered by the individual involved.
- Avoiding a blanket policy on types of conduct outside of work or criminal convictions.
For most employers, they will have to use their own judgment in these circumstances but getting expert, specialist advice will help make a balanced decision.