Keogh Sacked

[RandomAccessMemory]

5 minutes ago, GboroRam said:

I think people are presuming gross misconduct has to result in termination. That's at the discretion of the club.

If they offered a way that Keogh could avoid that, he had an option.

My experience was different but effectively I was brought in front of HR and told, your behaviour will be investigated and you could be found to have conduct resulting in gross misconduct. That has a potential result in termination. Alternatively you can take this money on offer and leave today.

I could have stayed and fought for the role but that would have been down to me to have argued my case. I had little confidence it wasn't just a stitch-up, so I took the money.

I'm sure any employer would have the right to offer something similar in terms of a different contract. Your conduct will be investigated and there is potential for it to be seen as gross misconduct, which may mean termination. Alternatively you can agree to new terms and we will not pursue the gross misconduct issue at all. Keogh chose the first option and, surprise surprise, it was a termination that resulted. 

Exactly. I'd just been reading this quote

Quote

What would a tribunal consider in deciding whether a dismissal for gross misconduct was fair?

{cut}

Were alternatives to dismissal considered?

https://www.lawdonut.co.uk/business/employment-law/discipline-and-grievance/gross-misconduct-faqs

Isn't that exactly what was considered? I'm sure the club wouldn't have wanted to go down the gross misconduct route even though they always felt they could, but then felt that they had to as no alternative was accepted by Keogh.

Let's not forget Keogh's agent said

Quote

It was something we were paranoid about but at no point did we think it was going to happen.

https://talksport.com/football/efl/624937/richard-keogh-agent-Derby-county-sacking-devastating/

If you didn't think the club had just cause to do it why would you be 'paranoid' about it?

I'd also imagine given the very specific nature of being a footballer that their contracts probably also include instances of gross misconduct that wouldn't be included in the employment contract of the average person in the street.

I'd told myself I'd stay off this thread but I was drawn back in! ?‍♀️

[GboroRam]

1 minute ago, Anon said:

Sticking with your example though, what if the incident being investigated also involved two colleagues committing a more serious offence who you knew weren't presented with the same ultimatum? Would you not have a case for constructive dismissal or unfair treatment?

I am assuming that the gross misconduct involves the crash. If it involves a separate incident, then this doesn't apply.

At the discretion of the employer I presume. They will choose how they deal with individuals. Because someone else committed the same action doesn't make you less culpable of what you did.

[The Scarlet Pimpernel]

1 hour ago, Anon said:

We can only hope the employment tribunal will interpret the term "gross misconduct" in a similarly broad one eyed fashion.

If someone is guilty of gross misconduct the company has the right to terminate a contract or not. It is their prerogative alone. What follows depends on other factors. For instance if you ran a Plumbing company and three of your plumbers, through their own negligence engaged in conduct that warranted gross misconduct but two were still able to resume work if required but one wasn't you are within your rights to sanction the two but keep them on but let the third one go because he is of no use to you. You could however out of the kindness of your heart offer to keep the third one also but on a new contract with a reduced wage. If he rejected the offer he has rendered himself unemployed. 

[Bubbles]

what i'm confused about, is if Keogh wins this appeal, what will he get? 100k or something from us? Which is what he'd get if he accepted the new contract, aswell as rehabilitation facilities?

[Coneheadjohn]

1 hour ago, ramsbottom said:

Paul 'The Wrecking' Crew is too good for this club...

We could put a half decent Mean Machine team together.

[RoyMac5]

55 minutes ago, GboroRam said:

I'm sure any employer would have the right to offer something similar in terms of a different contract. Your conduct will be investigated and there is potential for it to be seen as gross misconduct, which may mean termination. Alternatively you can agree to new terms and we will not pursue the gross misconduct issue at all. Keogh chose the first option and, surprise surprise, it was a termination that resulted. 

From the little that has been said though there has been an investigation, which says whether there is a case to answer about the allegation (but doesn't recommend what the outcome of that should be). If there is a case to answer then it goes to a hearing. Then whatever the outcome of the hearing is decided, in this case gross misconduct. Whatever the conclusions are, they only have to be based on the balance of probabilities. 

If it was done in the way you suggest then it could be construed as constructive dismissal - choose this or you are out. Unless the club did it that way as it meant that the impact on the organisation was less.

[May Contain Nuts]

1 hour ago, Anon said:

The other two were not asked to take a wage reduction.

I can only go on what's in the club statement, so their actual reasoning to Keogh may have been different, but I can't work out why they chose to go with the "gross misconduct" line. If they had been more honest and stipulated that the reduced salary or firing was due to him no longer being able to fulfill the terms of his contract, then fair enough. They didn't do that though. They have decided to fire one party for gross misconduct in an incident that involved three employees, treating the other two differently even though their conduct appears to have been worse than Keogh's.

They've all been given financial sanctions. If they all accept these sanctions then they all remain employed.

A 6 week fine suits the position Lawrence & Bennett find themselves in. A reduced salary vs guaranteed employment suits the position Keogh finds himself in. Giving them identical sanctions wouldn't really make any sense?

You could argue, and Keogh has argued that the level of his proposed sanction is unfair, but what is fair, exactly?

I'm yet to see anyone put forward a good argument as to how it's fair that the club should have to pay Keogh's full wages for 18 months when it's through no fault of their own that he's unavailable, nor did he didn't sustain the injury as part of his job.

Is a fine of 6 week's wages really a suitable sanction for that? It's alright being morally outraged (Not accusing you of that, Anon), but what's a realistic solution that makes sense for everyone involved? I've not seen anyone come up with one.

The very idea that the club should even think about the financial aspects of it seems to upset some people, but what are they supposed to do? Just take the hit?

[GboroRam]

36 minutes ago, RoyMac5 said:

From the little that has been said though there has been an investigation, which says whether there is a case to answer about the allegation (but doesn't recommend what the outcome of that should be). If there is a case to answer then it goes to a hearing. Then whatever the outcome of the hearing is decided, in this case gross misconduct. Whatever the conclusions are, they only have to be based on the balance of probabilities. 

If it was done in the way you suggest then it could be construed as constructive dismissal - choose this or you are out. Unless the club did it that way as it meant that the impact on the organisation was less.

No, definitely doesn't come through as constructive dismissal. The discussion would sound something like this, I guess:

We believe that you were in a car and were allowing a drunk driver to drive you. You also were not wearing a seatbelt. Being involved in an accident where you have not taken proper precautions to protect yourself could be considered gross misconduct. You have the option: take the new contract offered to you, whereby we will not pursue the misconduct case further; or waiting to see what the results of the investigation into the matter comes up with. Of course if you feel that you have no case to answer, and successfully complete that investigation with no fault found on your part, we move on and put this incident behind us with no mark against your character or your record from a HR perspective, but I have to warn you that if you are found to have behaved in a way that meets the definition of gross misconduct, you very likely will receive a sanction which could be as severe as immediate termination.

[RoyMac5]

34 minutes ago, GboroRam said:

No, definitely doesn't come through as constructive dismissal. The discussion would sound something like this, I guess:

We believe that you were in a car and were allowing a drunk driver to drive you. You also were not wearing a seatbelt. Being involved in an accident where you have not taken proper precautions to protect yourself could be considered gross misconduct. You have the option: take the new contract offered to you, whereby we will not pursue the misconduct case further; or waiting to see what the results of the investigation into the matter comes up with. Of course if you feel that you have no case to answer, and successfully complete that investigation with no fault found on your part, we move on and put this incident behind us with no mark against your character or your record from a HR perspective, but I have to warn you that if you are found to have behaved in a way that meets the definition of gross misconduct, you very likely will receive a sanction which could be as severe as immediate termination.

You could say that but there is still a high level of risk that they could take the case to tribunal for constructive dismissal if approached in that way. If they say the lines in bold before they conduct an investigation they are prejudging the results of the investigation. The employee might offer some sort of mitigating factor in the investigation - say for instance 'my drinks were spiked and I was thrown into the back of the car.' In which case the employee could feel that they were being pressured and had no choice but to leave their employment, as both choices are unacceptable ie going through a prejudged process or accepting a lesser contract. In which case an employment tribunal might uphold a claim for construction dismal. 

PS I am accepting HR advice on this matter, lol. ?

[Sheikh n Bake]

1 hour ago, Squid said:

what i'm confused about, is if Keogh wins this appeal, what will he get? 100k or something from us? Which is what he'd get if he accepted the new contract, aswell as rehabilitation facilities?

If he wins the appeal, potentially the rest of his contract paid up in full followed by additional damages costs. So, probably around £2m+. I don't think he'll get it though.

[observer]

7 minutes ago, Nick_Ram said:

If he wins the appeal, potentially the rest of his contract paid up in full followed by additional damages costs. So, probably around £2m+. I don't think he'll get it though.

whereas, no action taken by the club, how much is it for his contract to paid as normal plus full rehab costs and for what benefit.

 

He had to go and has nobody else to blame but himself (and lawrence)

 

[GboroRam]

13 minutes ago, RoyMac5 said:

You could say that but there is still a high level of risk that they could take the case to tribunal for constructive dismissal if approached in that way. If they say the lines in bold before they conduct an investigation they are prejudging the results of the investigation. The employee might offer some sort of mitigating factor in the investigation - say for instance 'my drinks were spiked and I was thrown into the back of the car.' In which case the employee could feel that they were being pressured and had no choice but to leave their employment, as both choices are unacceptable ie going through a prejudged process or accepting a lesser contract. In which case an employment tribunal might uphold a claim for construction dismal. 

PS I am accepting HR advice on this matter, lol. ?

I'm not a HR person but they would be able to word it in a sense of, without prejudice, this is a potential outcome. You have an option to avoid a hearing if you wish, or you can see the result of a hearing - bearing in mind that gross misconduct can result in dismissal.

I'm sure a good HR person would be able to say it in a way that says there is no presumption of guilt, but bear in mind this could be a result if certain conditions are found to have happened.

[Spanish]

2 minutes ago, observer said:

whereas, no action taken by the club, how much is it for his contract to paid as normal plus full rehab costs and for what benefit.

 

He had to go and has nobody else to blame but himself (and lawrence)

 

OK let's forget it's the team captain.

You are out on the town with your mates, and one of them who has been with you all night says he's going to drive home and do you want a lift?  You say yes the car crashes and you injure yourself with or without a seat belt.  Would you sue your mate?

[RoyMac5]

3 minutes ago, GboroRam said:

I'm not a HR person but they would be able to word it in a sense of, without prejudice, this is a potential outcome. You have an option to avoid a hearing if you wish, or you can see the result of a hearing - bearing in mind that gross misconduct can result in dismissal.

I'm sure a good HR person would be able to say it in a way that says there is no presumption of guilt, but bear in mind this could be a result if certain conditions are found to have happened.

My partner is HR (CIPD qualified) and their reply on reading the above suggestion is, I quote: 'baalocks! It's not just about the wording it's about the implication that lies behind the wording' ?

[BarbadosRam]

13 hours ago, ramit said:

He was offered a new contract, he refused that offer and was then sacked.  Granted, the offer was made in spite of his gross misconduct, but because he refused it, that became the reason he was sacked.

I think the point is (my view of it ) is that if he had accepted the reduced wages it would have been under a completely new contract i.e. he still would have had his original contract terminated (been sacked) but reemployed on a new contract with reduced wages. Basically the club still finding him guilty of gross misconduct but accepting they want him to remain employed with the club, albeit his worth to them is much much less.

[QuitYourJibbaJivin]

2 minutes ago, BarbadosRam said:

I think the point is (my view of it ) is that if he had accepted the reduced wages it would have been under a completely new contract i.e. he still would have had his original contract terminated (been sacked) but reemployed on a new contract with reduced wages. Basically the club still finding him guilty of gross misconduct but accepting they want him to remain employed with the club, albeit his worth to them is much much less.

This was my take on it. The club offered him a new job, one he was actually able to do rather than being paid ridiculous money for a job he clearly can’t do anymore.

[GboroRam]

14 minutes ago, RoyMac5 said:

My partner is HR (CIPD qualified) and their reply on reading the above suggestion is, I quote: 'baalocks! It's not just about the wording it's about the implication that lies behind the wording' ?

Well, I was given a very similar ultimatum. Took legal advice, nobody said there was any issue (other than they didn't have a leg to stand on with the gross misconduct anyway).

[RoyMac5]

1 minute ago, GboroRam said:

Well, I was given a very similar ultimatum. Took legal advice, nobody said there was any issue (other than they didn't have a leg to stand on with the gross misconduct anyway).

My HR advisor suggests that in your situation you would have had a case for constructive dismissal. ? I think in Keogh's case he was too dumb to see how 'things were going' and refused the new contract, but (probably) that was after the investigation and hearing.

[ramit]

48 minutes ago, BarbadosRam said:

I think the point is (my view of it ) is that if he had accepted the reduced wages it would have been under a completely new contract i.e. he still would have had his original contract terminated (been sacked) but reemployed on a new contract with reduced wages. Basically the club still finding him guilty of gross misconduct but accepting they want him to remain employed with the club, albeit his worth to them is much much less.

That's actually a rather good point.  i was just playing devil's advocate, as i perceived a flaw in some of the points mentioned.  If there is a court case, i hope Keogh loses it, he has not shown repentance or acceptance of doing wrong and deserves nothing at this point IMO.

[DCFC Ram]

From my reading of the DT report. It may be that MM's decisions regarding Keogh and the other two were simply business.

The club would pay Keogh X to the end of his contract, he would contribute little or nothing to the playing side of the business during that period. His saleable value during the contract will be minimal. His saleable value would be less than X at the close of his contract. So bad business. So bye.

The other two would cost Y and Z respectively to the end of their contracts and they could contribute positively to the playing side of the business during that period. They have saleable values during their contract. They also have saleable values at the ends of their contracts (to different extents, of course). So ok business. So they get to stay.

MM's line may well be why should he a business hit by sacking the 2 younger players.

Selling them being a different proposition altogether.