What should be rightly remembered as the end of a fairytale run in the FA Cup for Sutton United has turned into a dies horribilis.
Whilst his non-league team were fighting like beavers against the mighty Arsenal F.C. reserve goalkeeper Wayne Shaw was spotted by the television cameras tucking into a pie on the touchline in the 82nd minute. The vision of Mr Shaw engaging in what at first sight appeared to be a humorous act, was soon circulated around the news media. Unfortunately, within hours the Gambling Commission and the FA had launched investigations into potential breaches of sports betting regulations, landing Mr Shaw and Sutton United in very hot water. The crust (forgive me for inflicting this pun on you), or crux of the problem was that just before the match a betting company had offered odds of 8/1 that Mr Shaw would eat a pie on screen. After the match, the company declared on its Twitter feed that it had indeed paid out a five figure sum as a result of Mr Shaw’s antics.
Although he gamely tried to deflect the quickly souring coverage as a “bit of fun”, it has been reported that Mr Shaw was asked by Sutton United to resign from his employment at the club and he indeed fell on his sword.
Whilst all of the facts are not as yet established, it is clear that this case throws up some interesting employment law issues, not least in terms of gross misconduct and bringing an employer into disrepute allegations. It would not be appropriate to comment directly on those aspects whilst all the facts are still being established, however, the manner of Mr Shaw’s leaving his employment is worth noting. Wayne Shaw resigned his post, however, does being asked to resign, with the alternative being that you will be sacked if you do not resign, change the interpretation of a resignation to one of “dismissal”?
Section 95(1) of the Employment Rights Act 1996 (“the ERA 1996”) provides that there is a dismissal where "the contract under which he is employed is terminated by the employer (whether with or without notice)".
In Martin v Glynwed Distribution Ltd  ICR 511, the Court of Appeal held that:
"… Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, "Who really terminated the contract of employment?".
Subsequent case law has recognised that in certain situations an employment contract can be terminated by mutual agreement without there being a dismissal under section 95 ERA 1996. Such a consensual termination requires freedom of choice on the part of the employee. If there isn’t really a proper choice, the termination will be a dismissal.
The key question is "who really terminated the contract of employment?" Pressurising an employee or effectively giving an ultimatum ("resign or be dismissed") is a relevant factor in answering that question.
So where would this leave Wayne Shaw in the situation where he has been asked to resign? If he was given a blanket “resign or be fired” choice, it is likely that an Employment Tribunal would treat the termination of his employment as a dismissal. It would be useful to see Sutton United’s employee handbook as there is likely a policy which covers sports betting and specifically betting in a football match, which is outlawed in the UK. If his employer had a reasonable belief that he had breached this policy, they would have had grounds to dismiss for gross misconduct (which means a dismissal without notice and without notice pay).
For any employees who have 2 years of continuous service they have the right to not be unfairly dismissed, both on substantive and procedural grounds. It is worth noting that in cases where the dismissal was procedurally unfair (for example the employee was not given the opportunity to attend an investigation or dismissal hearing or to appeal the dismissal) the Tribunal will make a finding of unfair dismissal but may also adjust the employee’s unfair dismissal compensation under the so called “Polkey” rule. Where a dismissal would have been fair if the employer had carried out a fair procedure, the employee’s compensation may be reduced down to the amount of time it would have taken the employer to have carried out that fair procedure. This can be as little as two weeks in some cases.
If as an employer you are faced with an employee who commits an act of misconduct inside the workplace and wish to take disciplinary action, or you are an employee and faced with a situation where you have been requested to resign or be dismissed, then call our Employment Solicitor Daniel Stander on 0808 168 5550 or at email@example.com.