When reality bites

By Taylors Solicitors

02 Jul 2014

The World Cup match between Uruguay and Italy earlier this week saw Luis Suarez’s hunger for the game translate into what looked like a nasty bite to Italy’s defender, Giorgio Chiellini.

It was decided today that Suarez will be suspended from all football-related activity for four months and he has also been banned for nine international matches, ruling him out of the rest of the 2014 FIFA World Cup. He will also miss the first nine games of the Premier League season. Uruguay have three days to appeal against the decision.

This is the third time in four years that Suarez has allegedly bitten an opponent. When he played for Liverpool against Chelsea on 21 April 2013 he was banned for ten matches as a result of a similar incident with Branislav Ivanovic.

Speculation has been made since Suarez has been hit with a long term ban that the Reds could sue their star striker for breach of contract.

Sportsmen who are contractually bound to a club or team are employees, with all the rights and duties that attach to that status. Just like any other contract of employment, football contracts can be terminated summarily for gross misconduct and/or a breach of the implied term of trust and confidence.

The general argument is that Suarez’s behaviour in the work environment would usually represent gross misconduct resulting in dismissal. Although Suarez was technically not involved in club activities at the time, being away with Uruguay, the issue for the Reds is whether the actions of the employee have brought the business into disrepute, or if they are connected with his employment, so as to justify them taking action against their employee.

So in the same way that Suarez was found to be guilty outside of his usual place of work (as he was playing in the World Cup and not at Liverpool), what is the position where there is an allegation against employee of misconduct, which has taken place outside of the workplace?

One would initially think that this shouldn’t affect the employer – in fact it’s none of their business. However, this is not the case.

Employers can discipline or dismiss employees for misconduct, whether that constitutes criminal or non-criminal conduct, outside of the workplace. Consideration will be given to the gravity of the incident and the effect it has upon the employer.

Generally, if the conduct in question has a significant adverse effect on the employer’s business or can be found to be connected with his employment so as to justify taking action, then the dismissal may be fair.

If, for example, an employee is alleged to be acting violently outside of work and there is evidence to support a case that the employer’s reputation has already been or will be damaged, perhaps by reduced trade or adverse customer comment, then it would be reasonable to take this into account when deciding whether to discipline or dismiss an employee.

If an employee commits an act of gross misconduct, an employer has the right to dismiss the employee without notice. However, it should be noted that gross misconduct does not mean that the employee can be dismissed on the spot; there is still an obligation for the employer to investigate allegations and carry out any dismissal in accordance with a fair procedure.

Employers must be consistent. If other employees have previously committed the same offence but have not been dismissed it may be difficult to justify dismissal on a subsequent occasion.

Here are our tips to deal with situations where there may be violence committed by your employees outside of work:-

- Be clear in induction processes and staff handbooks that an employee’s behaviour outside of the normal working environment may still have implications on the working relationships.

- Operate a zero tolerance policy to violence.

- Ensure that you have a robust disciplinary policy in place. Examples of gross misconduct should include violent and aggressive behaviour including physical violence or bullying and deliberate and serious damage to property; bringing the employer into serious disrepute and serious misconduct, whether at work or outside the workplace which is connected to the employment.

- Ensure you have the contractual right to suspend an employee, if it is considered appropriate or there is a risk of violence in the workplace.  

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