Sam Allardyce recently became the reluctant record holder for shortest reign in the England football manager post, at just 67 days. His departure followed an exposé by the Telegraph in which they had recorded “Big Sam” in conversation with undercover reporters, posing as businessmen representing a fictitious firm, telling them how rules regarding third party ownership of players, prohibited by Allardyce’s own employer, the Football Association (FA), could be circumvented. He also mocked the previous England manager, Roy Hodgson, and made comments regarding players, coaches and the FA’s decision to build a new Wembley Stadium.
Allardyce left his post by mutual consent within 24 hours of the video being published. The general consensus, it appeared, was that the revelations had made Allardyce’s continued employment in the role untenable. The exit was negotiated rather than forced, but could the FA have dismissed Allardyce for this indiscretion?
The first point to note is that the evidence against Allardyce was collected by covert means, without his knowledge. The use of such evidence in a disciplinary process may be subject to challenge by the employee, either as a breach of privacy (protected by the Human Rights Act) or a breach of data protection principles. However, it can be possible for covert surveillance to form part of a disciplinary investigation, for example in cases of an employee’s fraudulent activities (e.g. fraudulently claiming to be sick).
Whilst covert recordings of internal meetings or hearings can be admissible before an employment tribunal if it is relevant to the issues in question, covert recordings of private discussions (for example the discussions between an employer’s disciplinary panel) will generally not be admissible. However, such discussions could be admissible insofar as they relate to matters outside the particular issues to be determined by the panel. Any loose talk covertly recorded could therefore be admissible. It can therefore be helpful prior to a disciplinary hearing to specify that the meeting is not to be recorded without permission.
It is advisable to have a policy in place, communicated to and accessible by employees, making them aware of any ongoing monitoring that may occur in the workplace. This could relate to email and internet usage, telephone usage and/or CCTV recordings. Having an electronic communications policy in place not only means that employers can expressly advise employees that monitoring may occur and the parameters of such monitoring, but the policy can also include standards and rules regarding other areas of concern, such as intellectual property, bullying and harassment, and contractual liability. It can also feed into a disciplinary process regarding allegations of misconduct or concerns about poor performance or dereliction of duties.
Even where a policy is in place, employers should be careful not to unnecessarily and/or disproportionately invade an employee’s privacy. They should also take reasonable steps to ensure fairness in any disciplinary proceedings arising from any breach of the policy. A failure to do so may result in allegations of unfair dismissal, discrimination and a breach of Article 8 (right to respect for private and family life).
Another issue is whether there were in fact grounds to dismiss Allardyce. Some commentators considered that his comments were not of a corrupt nature, that he had stated that he would need to check with his employers whether he could accept a £400,000 contract with an overseas firm (so there had been no acceptance of such an offer), and that saying it was possible to “get around” third party ownership of players was not itself a suggestion of breaking the rule, but rather finding perfectly legal loopholes. However, it was widely held that the comments caused a fundamental breakdown in the relationship of trust and confidence between himself and the FA, a relationship that exists at the heart of every role. This relationship was so deeply at the root of the England manager job, being one of the highest profile jobs at the FA, that it made continuing in the role unviable.
In this case there was no particular need to undertake a full investigation, as the Telegraph had done much of the work for the FA. The tape was a smoking gun, equivalent to finding an employee with their hand in the till. The FA could have gone straight to disciplinary proceedings, inviting Allardyce to give his version of events and then making a decision on whether to discipline him, including termination if it was deemed appropriate. The termination could have been without notice if the behaviour was deemed to constitute gross misconduct.
Ultimately the termination was “mutual”, which can be read as Big Sam being given the opportunity to resign rather than face the ignominy of a disciplinary procedure and dismissal. Reports suggest that a settlement was reached between the parties, in which case Allardyce would have waived any rights to bring any claims in return for a pay-off and certain agreed terms (e.g. agreed public statements, an agreement not to make derogatory comments about the other party, confidentiality regarding the negotiations, etc.). These terms would have been formalised in a settlement agreement.
Matthew Cranton - Employment & Immigration
This article was first published on 17 October 2016 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox!
This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.