• Suarez – did the punishment fit the crime?

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  • 7 May 2013
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Employers need to be sure any disciplinary sanctions they apply for employees’ misbehaviour fall within the range of reasonable responses

Footballer Luis Suarez recently appeared to bite an opponent during a match between Liverpool and Chelsea football clubs sparking nationwide debate. He admitted violent misconduct, and many argued he should be dropped by Liverpool for setting a bad example to young fans.

However, Suarez escaped dismissal and was instead fined by Liverpool and issued with a 10-match ban by the Football Association (FA). He chose not to appeal the duration of his ban, despite initially indicating that he would and his manager publicly criticising the FA for issuing inconsistent bans to players guilty of violent misconduct.

Reasonable sanctions

The case raises some interesting and important points for all employers when deciding what disciplinary outcome is appropriate, particularly where the sanction is likely to fall short of dismissal. It is crucial for employers to give well-rationalised consideration to the disciplinary sanction and to get the balance right, as the outcome must fall within a range of reasonable responses to limit the risk of future repercussions.

So what should employers take into account when deciding what punishment fits the employment ‘crime’? How can employers avoid their decisions being criticised and left open to challenge?

Mitigating circumstances

The key is for all of the evidence to be factored into the employer’s decision-making process. This includes considering any representations made by the employee and any mitigating circumstances, such as the employee’s personal circumstances, ill-health, lack of training or an established workplace policy. However, a lack of training or policy does not automatically excuse plainly unacceptable behaviour such as bullying or physical aggression at work.   

Employers should also look at the employee’s personnel records as part of the deliberation process. If there is a pattern of misconduct on record, then a more serious disciplinary sanction such as summary dismissal might be appropriate. However, dismissal should not be the starting point and employees should normally be given at least one chance to correct their behaviour.

There is a wide range of disciplinary sanctions short of dismissal which should first be considered by employers, including demotion or a formal warning to remain on the employee’s file for a fixed period of time. Other examples include a job transfer, a temporary unpaid suspension from duty, or the removal of a bonus or commission entitlement.

Contractual restrictions

However, in order to suspend employees without pay or remove their entitlements, the employer must have a right in the employee’s contract of employment to vary it. Implementing these disciplinary outcomes without a contractual right to do so could give rise to a breach of contract claim or a claim for unlawful deductions from wages.

Another vital step for employers is to look at the treatment of other employees who have been disciplined in comparable circumstances, to avoid criticism such as that given to the FA by Suarez’s manager. The main objective for employers is to justify every disciplinary decision as being appropriate in the specific circumstances.

Appropriate action

Once an employer has arrived at a decision, whatever it may be, the organisation’s careful deliberations should be set out in writing and given to the employee.

Implementing a disciplinary sanction which is too harsh could damage the working relationship with the employee irreparably. However, shying away from taking appropriate disciplinary action may only seek to delay a dismissal and cause problems in the meantime.

To avoid matters escalating into costly and time-intensive tribunal claims, employers should always take specialist advice at an early stage.  

Sarah Tahamtani is an employment partner at law firm Clarion

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  • I am appauled at the outcome of this case. To a professional footballer a fine is neither here nor there and a 10 match ban is like a slap on the wrist. Especially considering that had this have taken place in a nightclub or anywhere else for that matter the police would have been called and the guy would be prosecuted for physical abuse. The fact that this is also a repeat offence makes it even worse. Not a very good example to be setting in my opinion.