Martin Chitty and Nick Hurley warn against the sacking of soccer hooligans. Martin Chitty is an employment partner in the human resources group of Wragge & Co.
For a former member of 11 King's Bench Walk – one of the UK's best-known employment sets – the Prime Minister, Tony Blair, has displayed a sad lack of knowledge of the law in relation to dismissals for misconduct outside work.
Although he might gain political capital from his attack on “supporters” doing battle on a foreign field, his advice to employers to sack miscreants is not only misconceived, but wrong.
Imagine the scene. The industrial tribunal chairman looks at the managing director sitting nervously in the witness box. “So, he went to France on holiday and you thought you saw him on the news in a film clip of the ruckus on the beach in Marseilles. When he came back to work you got him in the office and fired him. Why?”
The managing director smiles a happy smile and says, “Tony Blair told me to do it,” at which point the cheque book is produced and the employee takes his compensation payment.
So why is the advice so bad? If the chap was seen on the beach in the middle of “the battle” and there is film of the event on TV then he must have been involved, right?
Wrong. Employers must look behind what they think they understand, and comprehend the possibility of impartiality or clever editing.
You may feel that all soccer hooligans deserve the sack, but an adoption of the Prime Minister's approach may leave you up the tribunal creek. But why? Firstly, if you are going to take action against an employee then his misconduct needs to be work-related or of a criminal nature that impacts on his relationship with fellow employees and customers.
Going to the World Cup or getting involved in a drinking spree may not be what he was employed to do, but presumably it was not on work time.
Has there been a criminal offence? If there has, does it impact on his colleagues and the business? If not, then the company will not have a leg to stand on.
So what of the company's reputation? If he was arrested wearing the company T-shirt for all to see then there would be adverse comment at best, and perhaps a loss of confidence in the company as it appears to employ hooligans.
But an employer is not going to get away by arguing that, because the name appears in the press report, it so tarnishes their reputation that the individual has to go.
Any employment lawyer or human resources manager knows that disciplinary action should only be taken after proper inquiries and, having formed a reasonable view, a reasonable sanction is imposed. Any employer who dismisses someone relying only on what they think they saw on the television is going to find a tribunal very hostile.
The whole area of action for activities undertaken outside the workplace is a valid area of concern for employers. The way to deal with it is not a knee-jerk reaction.