Getting your teeth stuck into High Performer Misconduct

David Browne

This blog has attracted rather a lot of attention on twitter, and has been interpreted by some as suggesting that the exercise of academic freedom might amount to misconduct. That was never the intention of the piece and we are happy to clarify that the lawful exercise of academic freedom does not amount to misconduct. However there may be circumstances where opinions and/or behaviour fall outside the lawful exercise of academic freedom and in these cases questions of misconduct may arise. Appropriate clarifications have been made to the text below.

 

As an ardent follower of the beautiful game I was saddened, though not necessarily surprised, by the Luis Suarez saga at this year’s World Cup.

Granted, there have been Hannibal Lector parodies, amusing doctored photos, and clever marketing campaigns to entertain us following the latest biting incident, but it also raises an important question from an employment perspective. Just when is enough, enough with key employees?

Both the Uruguayan national team and Liverpool FC initially defended Suarez, with the latter indicating that it will challenge the legal validity of FIFA’s four month global ban of its star striker. It’s easy to see why, with the player having singlehandedly knocked England out of the World Cup and arguably being the sole reason why Liverpool were still challenging for the premier league title on the last day of the 2013/2014 season. But both teams also have global brands which could be, and probably are being, tarnished by its association with a player who, quite literally, takes chunks out of other players. Already we have seen Suarez lose personal sponsorship from a high profile gambling site, and it looks likely that he will lose other lucrative deals in the wake of his actions. In addition, possible suitor FC Barcelona is rumoured to be behind Suarez’s recent apology, demonstrating that particular football club’s concern about its association with the player.

It now seems likely that Liverpool will sell the player and, in the interests of self preservation, it doesn’t look to be a bad decision. Could Liverpool have dismissed Suarez on the grounds of gross misconduct? Cleary it could have done (as it could for his similar attack on Branislav Ivanovic), although it is inconceivable that it would look to do so when it can instead sell the player for in excess of £50m. But a decision to sell at a reduced fee must be interpreted as being akin to a decision to dismiss him.

Universities and colleges may, equally, encounter high performing employees who, although academically brilliant, have the potential to damage their employer’s brand. This could be through outspoken opinions (where these fall outside the lawful exercise of academic freedom or freedom of speech more widely) or general insubordination, e.g. a failure to comply with the reasonable requests of an employer, or other behaviour such as bullying or harassment of colleagues. Irrespective of how potentially valuable these employees may be to their institutions, the reality is that, in consistently accepting unacceptable behaviour, institutions may be setting dangerous precedents to other employees that such conduct will be accommodated. From a risk perspective, it is also much harder to justify a dismissal, or other sanction, if similar conduct has gone unpunished before.

As much as employers may hope that unacceptable behaviour from key employees will be curbed without sanction, in reality the problems will persist, needing to be addressed further down the line. It remains to be seen whether Suarez is right when he says that he will never bite another player again, but he has made similar statements before.

David Browne
Senior Associate
Employment Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1690
International DD: +44 800 763 1690
E: david.browne@sghmartineau.com
W: www.sghmartineau.com

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