Partner Article

Moyes sacking and the employment law implications

After much speculation over the weekend it has now been confirmed that Manchester United has sacked its manager, David Moyes.

Given that Moyes had only been in post for 10 months the options available to the football club, from an employment law perspective, would be greater than those available in respect of longer serving employees. Those employed on or after 6 April 2012 require 2 years’ continuous service in order to bring an Employment Tribunal claim for ‘ordinary’ unfair dismissal and those employed before April 2012 only require 1 year’s service.

This means that employers are able to review the performance and suitability of new employees to ensure that they meet the needs of the business and, if they are not, consider whether to give a further opportunity for improvement and settling in or otherwise to terminate their employment. Although such employees could not claim ‘ordinary’ unfair dismissal there are still a number of other claims the employee could bring (without any length of service requirement) including an automatically unfair dismissal claim where dismissal was:

• for reasons connected with pregnancy, childbirth or maternity leave
• for certain health and safety reasons
• for making a protected disclosure (blowing the whistle)
• related to status as a part-time or fixed-term employee
• in connection with an application for flexible working
• related to the national minimum wage
• for performing functions as an employee representative on a TUPE transfer or collective redundancy
• for asserting a statutory right listed in the Employment Rights Act 1996 (section 104).

In addition, there is no qualifying period of employment required to claim discrimination or breach of contract against an employer or prospective employer. This means it is important that employers still fully consider any decisions to dismiss new or short service employees in order to assess the risk of potential claims.

Where an employee qualifies to claim ordinary unfair dismissal then the employer must ensure that it has a potentially fair reason to dismiss (conduct, capability, redundancy, breach of a statutory requirement or ‘some other substantial reason’) and that it follows a fair procedure in doing so to avoid facing strong claims of unfair dismissal – in many cases this will involve the issuing of formal warnings and opportunity for improvement, although the procedure to be adopted will depend on the reason for dismissal and the particular circumstances. If an employee is dismissed unfairly then they could pursue an Employment Tribunal claim for compensation, reinstatement or re-engagement.

Employers should also check the terms of the employment contract to determine the notice period which applies to the employee. If the employer does not want the employee to remain at work during their notice period then they should also check whether there is a contractual right to make a payment in lieu of notice or to put the employee on garden leave. Where there is no contractual right to take these steps then advice should be sought to weigh up the consequences and risks arising from doing so.

It is reported that Moyes had a 6 year fixed term contract with the club and so the decision to dismiss him after only 10 months could well be a costly one for the employer, even if it considered that he wasn’t delivering the results expected. Depending on the wording of contract (and any particular notice or other termination provisions included) Moyes could even be entitled to payment covering the remainder of the fixed term if the dismissal was in breach of his contract.

This was posted in Bdaily's Members' News section by Lester Aldridge LLP .