Gordons Legal Employment Update – 24 February 2017

Another light week of employment law updates! This week’s edition includes an analysis of the self-styled ‘Roly Poly Goalie’ situation with the potential employment implications of his resignation alongside brief updates regarding the latest tribunal compensation limits and the new government online database for employment tribunal judgments.

Steak and Constructive Dismissal Pie: The rise and fall of the ‘Roly-Poly Goalie’

Wayne Shaw: 3G pitch sweeper. Reserve goalkeeper. Pie-eater. Spot-fixer? Non-league Sutton United’s run to the FA Cup 5th Round was an almighty achievement, surpassed perhaps only by Lincoln United becoming the first non-League team in 103 years to reach the quarter finals. The magic of the FA Cup has never been demonstrated so sweetly.

However, for the 23 stone man who personified such an adventure, Wayne Shaw, actions during Sutton’s 2-0 home loss to Arsenal have since turned things savoury. In the 82^nd minute of the match, Shaw was filmed (some would say very deliberately as a publicity stunt) by the TV cameras eating a pie (or potentially a pasty). Known to Shaw, and many of his family and friends, Sun Bets had offered a special bet prior to the game:

“Wayne Shaw To Eat A Pie Live on Air = 8/1”

Although Shaw, self-styled as the ‘Roly Poly Substitute Goalie’, claims he was actually eating a pasty and not a pie and that it was just ‘a bit of fun’, both the FA and the Gambling Commission have launched full blown investigations into the incident. Sun Bets has admitted to paying out a five figure sum to one punter on the night as a pie is allegedly defined as a “filling totally encased in pastry.” The Commission are now looking for betting irregularities with the bookies, Shaw and the club under investigation for compromising sporting integrity. Indeed, one (legal) caller to BBC Radio 5 Live likened Shaw’s actions to spot-fixing.

Shaw was also caught in the bar at half time, and bet or no bet, his behaviour bred from underdog status limelight was hardly akin to sporting professionalism. As a result, less than 24 hours after the final whistle, Shaw was allegedly asked by the Sutton manager Paul Doswell (via the club’s board) to resign which he duly accepted in tears.

Following Mr Shaw’s employment resignation, we take a look at some of the nitty-gritty implications of the manner of his resignation and look at any possible liability Sutton United may have gained exposure to.

Unfair Dismissal?

Footballers can certainly be classed as employees (depending on the circumstances).  First things first, Wayne Shaw was previously dismissed by Sutton for an altercation with away fans back in 2013. He was allowed to return in early February 2015 and therefore if he was an employee, he had more than two years’ continuous service. This analysis should, of course, be the starting point for any decision to dismiss.

Allegedly, Paul Doswell asked Shaw to resign in light of the publicity stunt and the negativity that ensued. The manner in which Mr Doswell made this request is key. Did he say “resign otherwise we will dismiss you”? Did he say “we think it’s in everybody’s best interests if you resign”? Was he offered a Settlement Agreement? Did he put any pressure on him to resign at all?

If employers put undue pressure on their employees to resign this could amount to a dismissal or constructive unfair dismissal. Also, a reminder that if employees resign in the heat of the moment and seek to retract their resignation within a short timescale, they should be permitted to do so otherwise this may be deemed to have been dismissed.

Morrisons have allegedly offered Shaw a new job as an official pie-taster so if he were to accept, any compensatory award for loss of earnings in an unfair dismissal claim would be reduced accordingly (assuming Morrisons don’t really try and pay him in pies like they have suggested).

Of course there is a very good chance that Mr Shaw will ‘take his pie and eat it’ elsewhere with no fuss or hassle.

Tribunal Compensations Limits

The Employment Rights (Increase of Limits) Order 2017 brings into force the new increased compensation limits in the employment tribunals on 6 April 2017. Of particular note:

• The maximum weekly pay amount has increased from £479 to £489. This figure is used to calculate redundancy payments and the basic award for unfair dismissal.

• The maximum award that can now be awarded for the compensatory award for unfair dismissal is £80,541 increased from £78,962. Generally, 52 weeks’ actual pay still remains the limit for the compensatory award if that figure is less than this statutory limit (i.e. if an employee earns £40,000 a year, then that will be the maximum compensatory award. If the employee earns £120,000 a year, then £80,541 will be the limit as of 6 April 2017.)

The price increase has been implemented to reflect the increase in the RPI of 2.0% between September 2015 and September 2016.

Comment: As promised, an updated and complete version of the Gordons 2017 FactSheet with all key employment law figures is available here and a printer-friendly version is available here.

Employment Tribunal Decisions Go Online

The Government have recently made Employment Tribunal decisions available in a new online database. Previously, the only way to view judgments was to make a physical visit to Bury St Edmunds (for England and Wales) or Glasgow (for Scotland) and view them on their standalone systems. Although only new cases since the database came online at the beginning of February are going to be inputted, there are some 2015 and 2016 cases already on the system.

Although the binding decisions of the Employment Appeal Tribunal have been available online for some time now, the decision to put Employment Tribunals online may influence some employers to settle even earlier in proceedings in order to avoid any possibility of negative publicity.

The link for the database is available here. Some of them make an interesting read!

Comment: This development makes Employment Tribunal decisions and circumstances leading up to Tribunal claims much more public where full written reasons are given by the Tribunal in their Judgement.  Full written reasons are usually requested where one party is considering appealing.  Caution should be exercised before requesting the reasons on the basis that the facts of the case and findings will be available online for all to see. Online judgements may also be a factor for employers when deciding whether to settle a claim or not. Tribunals are particularly reluctant to grant anonymity to either party unless there is a very good cause to do so. It should be stressed that these Tribunal decisions are not binding and such judgments could potentially be appealed upwards to the Employment Appeal Tribunal.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.