Jennifer Smith (Solicitor)
It was reported last week that Marlon King is to be jailed for 18 months after being found guilty of sexual assault and actual bodily harm over an incident in a London nightclub. The Professional Footballers Association deputy chief executive commented that Marlon King had brought the situation on himself: “I don’t think anybody can deny that,” he said “but I think it’s important to bear in mind footballers are not divorced from society.”
Bobby Barnes, deputy chief executive of the Professional Footballers Association, believes Wigan are within their rights to dismiss King. “The clubs rules would say that this constitutes gross misconduct,” Barnes told BBC Radio 5 live. “He’s been convicted of a criminal offence and most right-minded people would find it difficult not to constitute that as gross misconduct so I think they would be on firm ground to make that decision.”
The Law and Gross Misconduct
Where an employee commits a criminal offence at work, an employer is likely to be justified in treating it as misconduct. In certain circumstances, the employer can rely on criminal offences committed away from work, as in King’s case. Gross misconduct must be so bad that it is reasonable to dismiss without giving any warnings or opportunities to improve.
Criminal conduct outside the workplace must generally affect in some way the employee’s suitability to continue working for the employer. This is likely to depend on the nature of the offence, the nature of the work undertaken by the employee, the extent to which it involves contact with other employees or the public and the status of the employee. King is in the public eye and in a position where he should be setting a good example to those who follow him and his club.
Employers should note that it will not necessarily be fair for an employer to dismiss an employee who is convicted of a criminal offence, even where the offence relates to his job in some way; the employer must still comply with basic principles of fairness such as giving the employee the opportunity to state his case. Any explanation given by the convicted employee may then be relevant to the question of whether dismissal is a fair sanction. Where the employee has been found guilty by a court, whether or not he pleaded guilty, it would be reasonable for the employer to conclude without further proof that the offence has been committed by the employee.
Gross misconduct is behaviour by an employee which is so bad that the employer cannot be expected to employ him any longer. The misconduct must be gross (i.e. extreme) and culpable (blameworthy). It will be conduct which is incompatible with the employee’s duties of fidelity, trust and confidence. On balance, King’s conviction for sexual assault and actual bodily harm almost certainly constitutes gross misconduct.
Advice for employers
Dealing with an employee’s misconduct is something almost every employer will be faced with from time to time. It is vital that such matters are dealt with consistently and in accordance with the proper procedures. This is not only because, in some cases, the disciplinary process ultimately leads to dismissal, but also because adopting a fair procedure is an effective tool to improving conduct in the workplace.
It will be a lot easier for an employer to establish gross misconduct where the misconduct is listed as grounds for summary termination, in the contract or disciplinary rules. It will be especially important to list actions or omissions peculiar to the employer’s business with particularly serious consequences i.e. breach of food hygiene standards in a restaurant kitchen.
It’s crucial that a business has written disciplinary rules and procedures. If problems do arise, these procedures should help dissuade employees from making tribunal claims and ensure you deal with employees fairly.
Make sure that your rules and procedures are:
• set out in writing;
• follow the good-practice principles set out in the Acas code of practice on disciplinary and grievance procedures.
For advice and guidance on any of the matters discussed in this article, please contact Jennifer Smith on 0161 615 0656.
