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Biting Off More Than You Can Chew – What Constitutes ‘Gross Misconduct’? | Employment Law

Biting Off More Than You Can Chew – What Constitutes ‘Gross Misconduct’? | Employment Law

If you were watching Tuesday night’s match between Uruguay and Italy, the chances are you did not see the incident that has caused a media firestorm at first glance.  With the score still Uruguay 0, Italy 0, two players, Uruguay’s Luis Suarez and Italian defender Giorgio Chiellini went down in the penalty area during the final 15 minutes of the game.  Suarez was pictured holding his mouth and Chiellini appeared to be trying to show the Mexican referee Marco Rodriguez (ironically nicknamed ‘Chiquidrácula’) what appeared to be bite marks on his shoulder.

The first scandal of the 2014 Fifa World Cup has the world transfixed. Although head-butting along with elbowing are common enough in professional football, biting is rare.  After being given a ten game ban in 2013 and suspended for seven games in 2010, both for biting another player, did the supremely talented Suarez once again mistake an opponent’s body part for a mid-match snack

Fifa’s Decision

According to art. 77 lit. a of the FIFA Disciplinary Code, the FIFA Disciplinary Committee is responsible for investigating and sanctioning any misconduct within a match that may have been missed by the referee.

Yesterday Fifa suspended the Uruguay striker from ALL football related activities for four months AND banned him from playing in nine international matches after finding him guilty of biting Italy defender Giorgio Chiellini. He has also been fined 100,000 Swiss francs (£65,680).

He will miss the rest of the 2014 Fifa World Cup and the first nine matches in the upcoming Premier League as he will not be able to play for his club Liverpool until 26 October 2014. In fact the ban goes as far as prohibiting him from entering a football stadium…

This is the biggest and sternest ban in World Cup history.

Zinedine Zidane

The situation and images have been compared to the notorious Zinedine Zidane head-butt on Marco Materazzi which occured after a brief but heated exchange of words in the 2006 World Cup final. Zidane received a red-card, was fined 7,500 Swiss francs and also given a three match ban which he converted into three days community service as the World Cup final was the last game he was to play before retiring.  In this incident, the referee did not witness the actual assault but was informed of it by his officials via his head-set.

As Luis Suarez contemplates his future, you may be thinking as you settle into a day at your slightly less glamorous (and probably less well-paid) job, “does sinking your teeth into another person, while going about your professional toil, amount to gross misconduct?”  Rather than risk you trying to liven up your day by conducting a real-life experiment on a much loathed colleague, let’s discuss the issue of gross misconduct and employment law here, alongside Fifa’s rules (which contain many similarities).

What is Gross Misconduct?

According to the Advisory, Conciliation and Arbitration Service (Acas) website , “an act of gross misconduct is considered to be serious enough to overturn the contract between employer and employee, so justifying summary dismissal”.

Examples of what will constitute gross misconduct should be made clear in a company’s handbook or in the employment contract between the employee and employer.  Typical cases include:

  • Physical assault or violence (as in the Suarez case)
  • Theft or fraud
  • Being intoxicated or under the influence of illegal drugs while at work
  • Malicious damage of property
  • Endangering other employees safety
  • Falsifying or removing company records without permission
  • A serious act of insubordination

However, gross misconduct is a subjective test and the Employment Tribunal will take into consideration whether there was “deliberate wrongdoing” or “gross negligence” on the part of the employee, whether or not the conduct resulting in the dismissal amounted to gross misconduct in accordance with the company’s disciplinary policy (Sandwell and West Birmingham Hospitals NHS Trust v Westwood).

Fifa ruled Suarez breached art. 48 par. 1 lit. d (assault) and art. 57 (which covers the principles of “unsporting” and “fair play”) of the Fifa Disciplinary Code.  You can view the full code here .

Dismissal Procedure for Gross Misconduct

Although the ending of the employment relationship after an incident of gross misconduct is often referred to as “instant dismissal”, there is a procedure which needs to be followed to ensure an employer is not left open to a case of unfair dismissal being brought against them.

Although you cannot literally dismiss an employee instantly, an employer can suspend them while they conduct the correct disciplinary procedure into the alleged incident.

If an employee challenges their employer’s decision to dismiss them for gross misconduct, the employer must be able to show the Employment Tribunal that the dismissal was:

 Fair

An employer MUST ensure that the dismissal process was a fair one.

When deciding whether the dismissal was fair, the tribunal will consider many factors including:

  • Was the employee notified as soon as possible that their actions were considered gross misconduct and disciplinary proceedings were underway?
  • Did the employer disclose all the information that they had obtained regarding the incident to the employee and give them an opportunity to defend their actions?
  • Were alternatives to dismissal considered by the employee?
  • Were there any mitigating circumstances (eg personal or health problems) which could be taken into account?
  • Was the employee informed of and given a right of appeal against the decision to dismiss them?

Uruguay Football Association has confirmed it will be appealing the decision.  If Fifa’s Appeal Committee refuses the appeal then the Uruguay FA and Suarez may take their appeal to the Court of Arbitration for Sport based in Switzerland.

Reasonable

An employer will need to be able to show the tribunal that the instant dismissal of an employee for gross misconduct was one that a reasonable employer would have made.

In the recent case of Graham v The Secretary of State for Work & Pensions (Jobcentre Plus) the Court of Appeal re-examined the test of what amounted to ‘reasonableness’ in this situation.

The Court of Appeal stated that when considering whether the dismissal of an employee for misconduct was fair, the Employment Tribunal must ask itself three questions:

  1. Did the employer carry out a reasonable investigation?
  2. Did the employer believe the employee was guilty of the misconduct in question?
  3. Did the employer have reasonable grounds for that belief?

In this particular case, after examining the wording of the Department of Work and Income’s disciplinary policy and noting the fact that the appellant was not suspended during the investigation and the nature of the offences, the Court concluded that a hypothetical ‘reasonable employer’ would view the appellants conduct as serious misconduct, as opposed to gross misconduct.

Each situation is decided on a case by case basis so an employer needs to make absolutely certain that they are acting in a fair and reasonable manner. Taking the time to seek legal advice and conduct a proper investigation can save both parties a lot of money and distress in the future.

Personal Injury Compensation

An employer has legal obligations to protect their employees from injury and harm at work.  As well as accidents this obligation can include protecting employees from assaults by fellow employees.

The Court of Appeal recently reviewed the law involving situations where an employer would be held vicariously liable for the torts of their employees in the conjoined appeals of  Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd.  The Court declared that the test for whether an employer was responsible for their employees acts depended on how closely related the act was to the work that the employer was employed to do.  In the Wallbank case, where the Court of Appeal held that the employer was responsible for the assault of a junior employee on a manager, the employee “lost it” and assaulted his manager seconds after a particular instruction had been given.  Therefore, the incident was sufficiently close to the act of employment to make the employer liable to pay compensation to the victim.

As for Mr Suarez, did he just “lose it”?    Some commentators have criticised the mainstream opinion stating that the incident does not warrant the moral uproar that has been unleashed, especially given that some of those who are making the biggest fuss have committed equal, if not worse crimes in the past. So far Giorgio Chiellini has not commented further on the issue following Tuesday night’s interview where he stated “It was ridiculous not to send Suarez off”.  However, yesterday he was photographed posing with a hotel maid biting his shoulder so the passing of time seems to have opened the way for a little humour on his side.

Social Media Sensation

However, even with Fifa’s suspension and ban in force, Suarez profile is bigger than ever with a poster of him bearing his teeth becoming one of the top backdrops for fan photos on Copacabana Beach in Rio and the internet is chock full of pictures, puns and jokes depicting the incident and its aftermath.

As for social media it has gone berserk.  If you want to liven up your lunch break you can check out some of the examples here.

Let’s hope this extremely talented player confines himself to biting nothing more exotic than a nice piece of steak for the rest of his career.  For us mere mortals, given that lucrative media deals and social media notoriety are likely to elude us in the event of an instant dismissal, it is advisable that we save our teeth for our lunchtime sandwich.

What do you think of the Suarez/ Chiellini biting scandal?   We would love to know your thoughts, feel free to comment below.

If you have any questions regarding gross misconduct or unfair dismissal you can read more about the issue here or call our office on 020 3588 3500 to speak to one of our employment specialists.



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