When an employee is Finn-ished and at the Towns-end of the road

As much as I prefer football to rugby, I have to confess having a passing interest in rugby at this time of year when the Six Nations is in full flow, particularly when Scotland are playing. Much has been written in the aftermath of the English victory at Murrayfield, including groans about supporters booing players when they are winding up a kick. However, it has been the publicity surrounding the spat between superstar player Finn Russell and head coach Gregor Townsend that caught my eye.

A sports team is, on a certain level, no different to any other workplace. A team of humans working together in pursuit of a common goal. The issues which are currently being reported between Russell and Townsend are the type of thing that must happen in workplaces on a daily basis.

The issue appeared to stem from the player having one beer more than the stipulated limit (two) on an evening, or something to that effect. However, it is plain from the press reports that there is more to it than that. Indeed, reports attribute statements to Russell not wanting to play in the current situation, set-up or environment, and that he doesn’t feel he has any sort of relationship with the coach.

Could this type of scenario, if we were talking about an employment relationship, form the basis for a fair dismissal? If so, on what grounds?

An employer who wants to dismiss an employee with more than two years’ service must first identify a lawful reason for dismissal. The potentially fair reasons are (1) conduct; (2) capability; (3) redundancy; (4) statutory ban; or (5) some other substantial reason (“SOSR”).

It is with the latter of these reasons, SOSR, within which the Russell/Townsend scenario would most likely fall. This is often referred to as a catch all reason where none of the other four apply. The key word is that the reason must be substantial. An employer cannot use trivial or minor issues to dismiss for SOSR.

SOSR is sometimes used to dismiss in cases where there is an “irretrievable breakdown” in workplace relations, or where there has been a complete loss of trust and confidence. Personality clashes are another example of potential SOSR dismissals particularly if the consequences flowing from that clash are having a substantial impact on the employer’s business. While SOSR can be a useful tool for employers, it is not to be used lightly.
Important points to consider: -

• An employer should have evidence that the breakdown is having an impact on the workplace.
• Dismissal should be a last resort (so the employer should look at alternatives, such as mediation).
• The size of the team is also relevant – for example could the employee be moved to a different department as an alternative?

Finally, if dismissing for SOSR, the employer should always carry out a fair procedure, allow a fair hearing and pay the employee their notice pay as this is not to be confused with gross misconduct.

If in doubt, take advice from the Blackadders Employment Team.

 Jack Boyle, Director
 Accredited by the Law Society of Scotland as an Employment Law Specialist
 Employment Law
 Blackadders LLP
 @EmpLawyerJack

 www.blackadders.co.uk