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Misbehaving Employees: Who Faces the Penalties?

Misbehaving Employees: Who Faces the Penalties?

What do you do if one of your employees refuses to obey your reasonable instructions?

This is the discussion that was kicked off by the bizarre events of last Sunday’s League Cup Final between Manchester City and Chelsea.  Under the Wembley floodlights the match was entering the final few minutes of extra time. Still goalless it was all set to go to a penalty shootout to decide the winner.  With that in mind, Chelsea wanted to bring off their goalkeeper, Kepa Arrizabalaga, who had been complaining of cramp, and bring on their substitute goalkeeper with a reputation for being a penalty saving expert.

But it was not to be.  With the world watching, Kepa Arrizabalaga refused to leave the pitch.  Cue drama. The Chelsea manager looked apoplectic and seemed to storm off, before reappearing and attempting to confront his rebelling keeper.

Both parties have since explained that this was all just a “misunderstanding” about whether Arrizabalaga was fit enough to continue.  Rather than showing him a red card, Chelsea have announced that they have fined the goalie a week’s wages (reportedly £190k) and he was pointedly dropped for Chelsea’s midweek fixture to make him, in his manager’s words, “pay” for his “big mistake”.

The Chelsea manager’s statement said “it is up to the club if they want to discipline him according to the club rules”.  So when can disobedience lead to disciplinary action?

Generally, all employees are under a duty to obey their employer’s lawful and reasonable instructions.  This applies even when this isn’t expressly written into their individual contracts, although it often is in more comprehensive contracts.

Refusal to follow those instructions is likely to amount to misconduct, although this will depend on:

  • Was the instruction legitimate?  In other words was it a request that was lawful and could be justified by reference to their duties?
  • Was the instruction reasonable in the circumstances? 
  • Was the employee’s refusal itself reasonable? This will need employers to investigate what the employee’s reasons were for refusal, and whether or not that was a reasonable approach to take.

Cases of flagrant insubordination would normally give employers the right to commence the appropriate disciplinary process or proceedings in the usual way.  In very serious cases it could even constitute gross misconduct, which could be a potentially fair reason for dismissal. However it is important to remember that employees with more than two year’s service are generally entitled to protection against unfair dismissal.  Employers looking to dismiss would need to show that they have established a potentially fair reason for dismissal and followed a full and fair process.

Of course cases of repeated defiance will likely also undermine the trust and confidence in the relationship between the employer and employee.

In terms of other sanctions, in less serious cases it may be that a warning or a “yellow card” would suffice. While docking players’ wages seems to be a pretty common feature of discipline in the footballing world, imposing this sort of penalty might end up putting other employers on the spot for claims of breach of contract or unlawful deductions from wages.  Companies should exercise a degree of caution if they want to employ this sort of tactic.

Our employment team would be delighted to assist if you’d like to discuss these sorts of issues in more detail.  Please do get in touch.

By Andrew Clark
Senior Solicitor

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