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#Poyet #Awkward

#Poyet #Awkward

Ah Sunday night, time to relax before Monday morning and the world of employment law kicks off again.  Sitting down to watch Nigeria v Spain in the Confederation Cup it seems that employment law doesn’t take the weekend off.   Just as Gus Poyet, manager of Brighton and Hove Albion and pundit on MOTD for the match, was getting ready to discuss the first half he apparently received the news from the BBC production team that his club had just issued a statement confirming his dismissal “with immediate effect”.  Poyet claimed that was the first he had been notified of the decision.  Almost immediately #Awkward was adopted by those commenting on twitter on Poyet’s “live” dismissal on the BBC. 

It is not clear what led to Poyet’s dismissal although it is being reported that a disciplinary investigation was instigated to examine whether he had breached his contract by making comments about his future following a play-off defeat by Crystal Palace.  What is known is that Poyet was suspended shortly after the Crystal Palace match.  What is also known is that the League Managers’ Association issued a statement on the day Poyet’s disciplinary hearing was due to take place stating that he had been ordered to attend the hearing despite the fact that he only returned from annual leave the day before and that the charges against him were not particularised until three days before that.  The statement also referred to the report forming the basis of the hearing comprising around 500 pages and the LMA making it clear to the club that Poyet’s representative was not available to attend the hearing but offering an alternative date three or four days later.  It would appear that the club did adjourn the hearing and
it took place three days later with the decision to dismiss being issued three days after the hearing.

The reporting of the case throws up a number of issues.  When is suspension of an employee appropriate in a disciplinary situation?  How long should an employee be given to prepare for a disciplinary hearing?  What is an employer’s obligation where an employee’s representative is not available to attend a hearing and how should an employee be notified of the sanction to be taken?   

The ACAS Code on Discipline and Grievances at Work suggests that suspension may be necessary during a disciplinary investigation where “relationships have broken down, in gross misconduct cases or where there are risks to an employee’s or the company’s property or responsibilities to other people”.  The challenge with disciplinary suspensions is that it can often be difficult for the employee to return to work particularly where the suspension has been lengthy due to the time taken to conclude the investigation.  Suspension is certainly something that should be used with caution and after careful consideration including consideration of whether there are any alternatives. 

On the question of preparation for the hearing, the ACAS Code states that the employee should be given “reasonable time to prepare their case”.  How long is reasonable will depend on the extent of the allegations and the volume of information pulled together following the investigation.  A 500 page report is unusual and it would seem unreasonable to given an employee only one day to review a report that long and prepare for a hearing.  It is common to see disciplinary procedures that refer to five working days’ notice of a hearing.

What is the position if an employee’s representative is unable to attend the hearing as in Poyet’s case?  Again this is covered in the ACAS Code which states that the employee can suggest an alternative date and time so long as it is reasonable and is not more than five working days after the original date.  If an employer fails to re-arrange the hearing in those circumstances the employee can complain to the employment tribunal who can award compensation of up to two weeks’ pay. 

Clearly the biggest talking point of the Poyet dismissal is the way in which he found out about it if it is true that the news was broken to him by the MOTD team.  Again the ACAS Code contains clear guidance that employees should be given details of any disciplinary action in writing as soon as the decision is made.  The Code goes on to say that the written notification should specify the nature of the misconduct, the penalty and the timescales for lodging an appeal.  Employees with more than one year’s service also have the right to request a written statement of reasons for dismissal with employers being required to provide the statement within 14 days of the request. 

There is much that is not known about the circumstances surrounding Poyet’s dismissal. One thing that was clear from the coverage on MOTD is that he is going to appeal the decision.  It will be interesting to see how the outcome of any appeal is communicated!

Morag Hutchison
Director

LChalmers