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That’s another fine mess….

22 Sep 2017

 

The Football Association has found itself in hot water again over the dismissal of England’s women’s football manager, Mark Sampson.  The situation has been described by Government ministers and former players alike as “a mess”.

 

Mark Sampson was already the subject of discrimination allegations, made by England players, in respect of which he had been cleared of wrong-doing.  However, the FA decided to dismiss Sampson on the basis of his “inappropriate and unacceptable” behaviour with female players in a previous role with a previous employer.

 

While the high profile nature of his role and the on-going traumas of the FA might fascinate sports fans, there are some intriguing employment issues, both legal and practical, that are raised by the situation.

 

Sampson became England’s head coach in December 2013.  Prior to that he worked for a club side, Bristol Academy.  Sampson’s dismissal relates to historical conduct whilst employed by Bristol Academy prior to his employment by the FA.  Safeguarding allegations against Sampson relating to that conduct were made in 2014 and were the subject of an FA enquiry.  In 2015 an FA assessment found that Sampson did not pose a safeguarding risk.  His recent dismissal comes, according to the FA, after it became aware, last week, of the full details of the 2014 allegations and the full report into those allegations. 

 

That begs some questions:

 

  • When can an employer rely on misconduct with a previous employer to terminate the employment?

 

  • Does it matter that the employer, in this case the FA, took no action in 2015?

 

  • What might an employer do to reduce the risk of taking on an employee whose previous misconduct might make them unsuitable?

     

An employer can no doubt potentially rely on misconduct with a previous employer to dismiss an employee.  However, unless an employee has in some way misled the new employer, the employee will not have been in breach of any of their responsibilities to the new employer.  The new employer instead will probably have to rely on the unsuitability of the employee for continued employment as the basis for dismissal.   Typically this will involve an assessment of the responsibilities of the employee in their current role, the detail of the historical misconduct and an assessment of how it impacts on the employee’s suitability.  Issues of reputation and, particularly where there has been any element of concealment by the employee, issues of trust will have to be weighed up.

 

The FA’s failure to take action in 2015 perhaps raises the biggest issue.  The assessment that Sampson posed no safeguarding risk was made by the FA.  The FA was Sampson’s employer at the time.  Was it a case of the left hand not knowing what the right was doing or is it the case that something has happened since 2015 to affect the FA’s view.  We do not know the detail.  If the FA, in 2015, knew of Sampson’s historical misconduct and took no action it makes it difficult to justify dismissal now. 

 

The FA’s explanation is that the 2015 investigation was a safeguarding investigation whilst the recent assessment of the 2015 report raises conduct issues around boundaries between player and coach.  That seems odd.  Why were those conduct/boundaries issues not considered important in 2015 but are considered important enough now to justify dismissal?  In any event there is a fine line between safeguarding and boundaries issues.

 

What might the FA, or any employer, do to reduce the risk of such a situation occurring?  The obvious answer is that it needs to do its due diligence when recruiting.  Any employer appointing to a senior appointment (and some more junior ones for that matter) ought to be considering:

 

  • Its policy in seeking references, including specific questions regarding conduct issues and how it follows up those enquiries.  Whilst it is increasingly common for ex-employers to provide bare references only, there is no reason why the recruiting employer cannot press for more or make a more detailed reference a condition of employment.  That at least puts a burden on the candidate to press their former employer for a fuller reference.  If the former employer will not play ball, maybe that sets alarm bells ringing.

 

  • Its application process.  How specific are the questions that are asked of candidates?  Why not ask the candidate if they have ever been the subject of a disciplinary allegation or investigation?  If the candidate answers falsely it will at least make it easier for the employer to address the situation should misconduct come to light.  If the candidate is honest, the employer can make its further enquiries. In Sampson’s case he is reported to have been asked to tick a box to indicate whether there was anything that the employer should know about. Sampson allegedly ticked “no”. The question could not have been more vague!

 

  • Publically available information.  Besides any relevant public registers the employer should be considering what information is available on social media or through its connections.

 

If you do have any questions that arise from the issues discussed in this article, please contact Simon Bellm at DMH Stallard using the details below.

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