Employment lawyer, Philip Landau looks at the position.
With the news that the FA and Sam Allardyce has “mutually agreed to terminate his contract with immediate effect”, it begs the question whether it is sometimes better to reach an agreement with your employer when you are facing disciplinary proceedings and could be dismissed.
The short answer to this is yes, this can be the best course of action. In Allardyce’s case, he would have almost certainly faced at the very least a disciplinary warning for bringing the FA into disrepute and fundamentally undermining the trust and confidence between the parties. At worst, he faced a dismissal for gross misconduct.
By reaching a settlement with the FA which included a resignation of his position as England manager, Allardyce leaves with his reputation somewhat more intact than it would have been if had he been dismissed. He also leaves with a reported pay off of £1m. If Allardyce had been dismissed for gross misconduct, he would have received no termination payments, even for his notice period.
And so, it can often be beneficial to try and reach an agreement with your employer if you believe dismissal will otherwise be on the cards and/or any future relationship is untenable. Your employer may be receptive to such an approach where there remains some goodwill towards you (on a personal level), or where your employer feels there is some risk to a claim. It is a good idea to make your employer aware of such risks where you do have a defence to the proceeding. Usually it is better to also have a lawyer negotiate on your behalf, as there will be a legal basis to the rights and wrongs of a disciplinary process and a lawyer will be more versed in negotiation skills.
Whether or not you agree with the disciplinary action against you, a decision to stay and fight may cost you dearly in terms of your future career. A dismissal for gross misconduct may colour your job reference, which can make it very difficult to secure new employment. This is not to say that you should automatically give up without a fight, but if there is overwhelming supportive evidence against you, the reality is you are likely to be dismissed.
If it is possible to come to an arrangement with your employer, the terms are usually contained in a ‘settlement agreement’, which should include the termination payments due to you (such as your notice, outstanding holiday and salary) and also mutual non-derogatory clauses for protection against your employer bad-mouthing you. There should also be a job reference annexed to the agreement which will bind your employer when a future reference request is made.
If a settlement is not possible, or you decide to defend the disciplinary action your employer should follow the ACAS code of practice which recommends an employer should investigate all allegations of gross misconduct and give you the opportunity to respond to the same. You are entitled to be accompanied at any disciplinary meeting by a work colleague or trade union representative. A dismissal also needs to be a “reasonable and proportionate” response by your employer. It may be, for example, that demotion or a final warning is a more appropriate sanction.
If you are dismissed, your employer should also notify you of your right of appeal including who to submit it to and the timescale. You can make a claim for unfair dismissal in the employment tribunal no later than 3 months less one day from your last date of employment by firstly lodging the claim with Acas under their “early conciliation procedure”.