How do you deal with your own #KPgenius?

The current saga regarding Kevin Pietersen’s dropping from the England cricket team has created a lot of headlines with Pietersen being accused of being a disruptive force in the dressing room, making unreasonable demands as to his playing commitments, and of sending disparaging text messages to members of the opposing South African team about his captain Andrew Strauss. Pietersen himself has accused teammates of colluding with the originator of a parody twitter account of himself called #KPgenius.

The ECB has taken the brave step of dropping Pietersen for the final test against South Africa despite him scoring a match-saving 149 in the previous test. The situation that the England management have found themselves in mirrors the problem that many employers face when their star employee is difficult to manage but also brings in significant income or benefits to the business. What can be done to deal with such an employee?

It is the case that most businesses need different people with different skillsets for the business to function properly. I have worked at firms where different partners did not get on but they appreciated the need to rub along for the greater good of the firm. If all employees are the same then not only would they have the same strengths, they would also have the same weaknesses and a “clone” workforce is not necessarily beneficial. It is therefore often advisable for a business to give some latitude to the difficult star employee as to do so will benefit the business as a whole. This can mean that the employer has to perform a balancing act to ensure that the employee’s behaviour is not bullying or discriminatory as if this behaviour is allowed to continue then the employer could find themselves open to claims of constructive dismissal or discrimination from other employees in the business who have had enough.

Like the England dressing room, it is preferable for internal disputes to stay within the business with a united front being presented to both customers and competitors alike. Open signs of disunity within a business can be seen as unprofessional and also a sign of weakness. This means that when an employee, however talented, starts openly badmouthing their employers to competitors and/or customers it is normally the case that they will have to be disciplined.

So what action can be taken against an employee who is badmouthing their colleagues and employer? A lot depends on the nature of the remarks and the context within which they were made. The employer would have to consider whether the employee could carry on working for the business after making the remarks and also whether they can continue working with their colleagues and managers. Ultimately, if the comments were sufficiently derogatory and damaging, the employee could be seen as having breached the implied term of trust and confidence between employer and employee and could be dismissed for gross misconduct.

Pietersen made the remarks by text message. I have no idea how it was discovered that he had made the remarks by text no-one really seems to know what they said. It would be difficult for employers to check an employee’s texts particularly if they were made on a private phone or they had subsequently been deleted by both the sender and the recipient. Employers can potentially check employees work emails for such comments; however, there are privacy issues and employees should be informed that their emails may be monitored (usually in their contract of employment or staff handbook). Checking an employee’s emails is not a step that should be taken without careful consideration and where necessary legal advice should be taken.  Comments made on social media sites such as Facebook and Twitter may also be used as evidence of trust and confidence being broken.

It can be very difficult for a business to sack their star employee. If they are a salesperson there is the risk that they may take clients with them; alternatively, they may have a set of skills that are hard to replace. It is a big step in such circumstances and businesses have to ensure that they are bigger than one individual. Hopefully the performance of England on day one of the test shows that such a step can be taken and others will flourish (I may have to amend this last paragraph if it all goes wrong in the next four days!).   

Was Vince Cable right to get a Beecroft in his bonnet?

The Business Secretary Vince Cable described the Beecroft Report which amongst other things proposed a change to the laws relating to unfair dismissal as "bonkers" Beecroft responded to this description of his report by calling Vince Cable a “socialist” (I am not sure whether that is actually an insult – I know some people who are very proud to call themselves socialists). So were Beecroft’s proposals in relation to unfair dismissal really that crazy?

The Proposals

Beecroft proposed that the law relating to unfair dismissal be changed in the following ways:

·         An employer can dismiss an employee without giving a reason regardless of their length of service. This would be known a “compensated no-fault dismissal”.

·         There would be what Beecroft describes as a brief consultation before the decision to dismiss the employee is taken.

·         The employee would be paid an enhanced payment as compensation for leaving in this manner in a similar way that an employer would pay an employee a redundancy payment.

The Potential Benefits

Beecroft believes that the current laws regarding unfair dismissal do not take into account that circumstances can change during an employee’s employment. The employee may be promoted and not be able to fulfil their new role properly, there may be changes in customer demands or technology which make the employee unsuitable for the role.

Beecroft is of the opinion that his proposed changes to the law relating to unfair dismissal would reflect the commercial needs of businesses and by making it easier to dismiss an employee it would actually make companies more inclined to take on staff.

The problems

So what are the problems with these changes? Beecroft is right in that the current unfair dismissal laws do not take account of situations where an employee is promoted and it turns out that their new role is beyond them or if there are changes in customer demands or technology. It is however the case that employers can dismiss employees fairly on the grounds of capability although this can take some time (often around three months).  There is also the possibility of dismissing somebody on the grounds of redundancy if technology changes means that they are surplus to requirements. This brings into question whether or not these changes are actually needed.

There is also the issue of the process of dismissing an employee in such a fashion. Beecroft stops short of advocating allowing a manager to come in and sack an employee on the spot saying that there should be a brief consultation. He does not expand on what form this consultation should take nor does he deal with the issue of what happens if the process is not followed properly. Does this mean that the employee could still claim unfair dismissal if they felt the process was not carried out correctly?

It is also the case that employees would still be able to make discrimination claims arguing that their dismissal was a discriminatory act (e.g. on the grounds of race or sex) so there would still be a risk of an employment tribunal claim being made against the employer.

Further; on a practical level, even if you are dismissing somebody under the grounds of compensated no fault dismissal it is still a difficult conversation to have with an employee. Not all business owners/managers like having that type of conversation and so they may still avoid going down this route instead preferring to cope with the situation by letting the employee in question continue working in the hope that things may get better or the employee will leave of their own accord.

Often the arrival of a new manager can mean that they want to clear out existing staff members. These proposals would make it fairly easy to do this; however, what happens if the business realises that it has hired the wrong manager? They can easily get rid of him or her but they will potentially have lost a number of staff who that particular manager had sacked on a whim that they may have wanted to retain. There may also be some morale issues with the workforce if they feel that they are going to be sacked at any time for no good reason. This may lead to staff members leaving for more “friendly” employers because they do not want to work in such an environment leading to increased staff turnover which would be costly for employers.

Conclusion

I feel that these proposals have not been properly thought through and will be kicked into the long grass and quickly forgotten. The intention of the paper was to propose how to cut red tape. The reality is that much of the legal obligations for employers derive from the EU (e.g. maternity regulations, agency workers regulations, TUPE, part-time workers rights, and discrimination law) and unless there is a fundamental change in the UK’s relationship with the EU these obligations will not go away and a majority of the red tape will remain. The reality was that the Beecroft report just proposed tinkering around the edges and succeeded only in generating a political row for a few days.

Speaking Philosophically about the Bahrain Grand Prix

There has been a lot of coverage in the press about whether the Bahrain Grand Prix should go ahead this weekend due to the pro-democracy protests that are taking place in the country. This coverage has however made little mention of the decision of Williams Formula 1 team to dismiss a member of their catering staff because she refused to travel to Bahrain on moral grounds.

Very few facts relating to the dismissal of this employee are in the public domain but it is understood that Williams took the decision to dismiss her because she was contracted to work at all 20 races of the F1 season and by refusing to work at the Bahrain Grand Prix she had breached her contract. If the employee had only started working for Williams at the start of the F1 season she would not have been able to make a claim of unfair dismissal as she did not have the required length of service, but could she instead made a claim that she dismissal was an act of discrimination due to her philosophical beliefs?

Since 2003 employees have been entitled to protection from discrimination on the grounds of their philosophical beliefs. The meaning of “philosophical beliefs” has been the subject of scrutiny by the Employment Tribunal system. There have been some surprising results with various Tribunals finding that beliefs in climate change, anti-fox-hunting, and public service broadcasting amounted to philosophical beliefs that were entitled to protection under the Equality Act. It is not clear what the “moral grounds” were for the employee not to want to travel to Bahrain but if it was a belief in democracy and/or human rights then these are likely to be classed as philosophical beliefs that should be protected.  

So how could Williams argue that the decision to dismiss the employee was not discriminatory? The case of Grainger Plc & others v Nicholson (which found that a belief in climate change could be considered a philosophical belief) set out a list of principles which should be applied to decide if a belief should be subject to the protection of the law. This list included whether the belief held was genuinely held and also whether it had a certain level of certainty or cohesion. If the employee had worked at the Chinese Grand Prix which took place the previous weekend then the genuineness and cohesion of her beliefs could be challenged as she would be questioned why she worked in a country (China) which is governed by one party and has an appalling human rights record but did not feel that she could work in Bahrain. This would potentially create difficulties for the employee if she made a tribunal claim.

As I said above, the facts in the public domain regarding the decision to dismiss this employee are limited. Williams described her departure as being by mutual consent so it may be the case that some form of settlement was reached; however, the dismissal of this employee does highlight the need for businesses to be careful when dealing with an employee who objects to being asked to do something that they feel is immoral.

Bad Management of Football Managers is Bad Financial Management

The administrators at Portsmouth Football Club have published their report this week. It states that Portsmouth have debts in the region of £58 million. There are plenty of other football clubs who have found themselves in administration including Portsmouth’s local rivals Southampton FC, Plymouth Argyle (my team!) and most recently Glasgow Rangers. So how have these clubs got themselves into such trouble?

The cost of dismissing the manager is one contributing factor. It is often very likely that if a sacked football manager was to make a claim of unfair dismissal they would probably have very good prospects of success. This means that more often than not they will be paid off by the club.

Football managers are very well paid and are usually on contracts for a fixed term of 3 to 5 years. If the club decides to dismiss a manager after only a short period they are potentially liable to pay the manager the balance of his contract. They can argue that the manager should try and minimise his losses by finding alternative employment and there is usually horse trading between the club and the manager as to how much the settlement should be but it is the case that such a settlement can run into hundreds of thousands of pounds. It is arguable that dismissing the manager can actually be doing the club more harm financially than keeping him on.

What is also often forgotten is that when a manager is dismissed the rest of the coaching staff (who have often come with the manager) will often be dismissed as well meaning that there will be potentially more compromise agreements being handed out. This means that a club with a lot of outgoing managers will quickly find that a lot of money is leaving with them.  

Since Harry Redknapp left Portsmouth in 2008 there have been ten managers at the club and since he left Southampton in 2005 there have been eight managers. This cannot have helped the either club’s finances. There are other reasons for clubs going into administration such as players’ wages and general financial mismanagement; however, having a high turnover of managers cannot have helped both for footballing and financial reasons.

How Cardiff Blues Tackled Henson

Welsh rugby international Gavin Henson was dismissed by his employers Cardiff Blues today following his misbehaving on a plane from Glasgow to Cardiff last Saturday morning. There has been plenty of comment in the rugby press about his departure (one that was particularly good was by Brian Moore); however, from an employers’ point of view how easy was it for the Blues to sack Henson?

The reality was that it was fairly easy for the club to do this. Henson was travelling back from Glasgow having played for the Blues the previous evening. He was in all likelihood travelling back with the rest of the squad on a flight paid for by the club. If this was the case it can easily be argued that at the time of the incident he was “on duty” with Cardiff. I would also be very surprised if there was not a clause in his contract that said he should not do anything that would bring the club’s name into disrepute.

By misbehaving on the flight in such circumstances, Henson had created the perfect storm for himself making it very easy for the club to dismiss him on the grounds of gross misconduct. Henson’s best argument may have been that his behaviour on the plane had not amounted to gross misconduct; however, while what did or did not happen on the plane may have be open to speculation, Henson publicly apologised for his actions indicating that his misbehaviour was serious in nature. Further, Henson being banned by Flybe for six months would not help this argument.

In any event, Henson had only been with the Blues since the start of this season meaning that he did not have the one years’ service (two years from 6 April 2012) required to make a claim of unfair dismissal. He could still claim wrongful dismissal but if successful that would only entitle him to the monies that he would have received had he been given the notice that he was entitled to under his contract.

In reality Henson is unlikely to be making a claim against the Blues and instead will be getting his agent to start contacting potential employers. Maybe we will see him on I’m a Celebrity …..