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Have your pie and eat it

Have your pie and eat it

Eating a pie on camera: a bit of a laugh or gross misconduct?

As you may have seen in the news this month, Sutton United’s reserve goalkeeper, Wayne Shaw, resigned from his position after a stunt got him into hot water. Sutton United don’t normally see themselves in such high-profile football matches as the FA Cup tie against Arsenal, and the bookmakers offered odds before the game of 8-1 that Mr Shaw would eat a pie on screen during the match. Mr Shaw, with his new celebrity status, did exactly that and as a result this led to an investigation by the Football Association and the Gambling Association for potentially breaching betting rules during the FA Cup tie against Arsenal.

Eating humble pie

In this case, Mr Shaw was asked to resign and agreed to do so. However, what should an employer be aware of in similar grey areas, when considering whether to dismiss an employee?

Blue pie thinking

In similar situations, employers should consider the following points:

  • What was is the misconduct in question? Ensure that if the employee is dismissed that the reason for the dismissal is clear to the employee in their dismissal letter.
  • Why exactly is the behaviour a problem for the Company? Is it because of potentially criminal activity, integrity or the reputation of the club? Can the disciplinary rules provide some guidance on this point?
  • Was it reasonable to dismiss the individual in the circumstances? Did the employee have long service and an unblemished record, or was this part of wider performance issues which had been discussed on previous occasions? Was the employee apologetic or did they think that it was all a bit of fun? This requires a consideration of all of the circumstances, including the size and administrative resources of the employer as well as fairness.
  • When looking at fairness, a dismissal for misconduct will only be fair if:
    • at the time of dismissal the employer believed the employee to be guilty of misconduct;
    • the employer had reasonable grounds for believing that the employee was guilty of that misconduct; and
    • at the time that it had the belief, it carried out as much investigation as was reasonable.

Steak and Alecas pie

The Acas Code applies to dismissals for misconduct and covers some of the points that employers will be familiar with.  According to the Acas Code, before dismissing for misconduct, an employer should:

  • Investigate the issues;
  • Inform the employee of the issues in writing;
  • Conduct a disciplinary hearing or meeting with the employee;
  • Inform the employee of the decision in writing; and
  • Give the employee a right of appeal.

Before employers rush to dismiss an employee in borderline situations they should be sure to follow the above guidance to ensure that they haven’t bitten off more than they can chew.