Fair game for all

Sports
employers face the pitfalls of performance-related dismissal cases and should
bring employee contracts up to current legislation, as Richard Keen reports recent
high-profile case brought by two cricketers against Leicestershire County
Cricket Club should send a clear message to a wide range of employers about
their handling of performance-related dismissals.

The
recent victory for professional cricketers Neil Burns and Carl Crowe in their
unfair dismissal case against Leicestershire Cricket Club has certainly caused
a stir in the sports industry.

In
fact, so strong was the evidence in favour of the players, that the tribunal
gave an indication of its likely finding part-way through the hearing. This
resulted in an out-of-court settlement after only three-and-a-half days of
evidence.

Burns
and Crowe were dismissed by Leicestershire Cricket Club at the end of the 2002
cricket season. However, based on their performance during the 2002 season,
both had received verbal assurances that their contracts would be renewed.

The
claim brought by the cricketers focused on two major issues – the way in which
many sports employers still view employment in terms of seasons and the manner
of their dismissals.

Leicestershire
Cricket Club employed players on a series of standard English Cricket Board
fixed-term seasonal contracts that begin in April and last until September.

Burns
and Crowe argued that their continuity of service was, in reality, for the
entire 12 months. After all, a sports professional is a sports professional all
year round – off-season training being just as important as playing for a team
during a season – and sports contracts ought to reflect this reality of
employment.

However,
this is not just a relevant issue for the sports industry – it can apply to any
employer of seasonal staff. For example, entertainment, leisure, education and
agriculture are all sectors that rely on their employment of staff on a
seasonal contract basis. But, Section 212 (3) of the Employment Rights Act 1996
states that if employees are absent “on account of a temporary cessation of
work” or “by arrangement or custom”, then the period of employment cessation
can count towards an employee’s continuity of service and thus enables them to
have full employment rights.

Therefore,
if Burns and Crowe had their 12-month continuity of service upheld, it would
allow them to bring unfair dismissal claims against Leicestershire for the
second issue – the way in which they were dismissed.

Both
players had been dismissed at the end of the season, at a time when most other
county teams had already picked their players for the following year. This made
it impossible for Burns and Crowe to secure another first-class cricket
contract for 2003 – something that had obvious implications on their
livelihood.

Burns
had even specifically written into his own contract that Leicestershire would
review whether it was going to retain him by 14 July 2002. This would then give
him enough time to get another job should Leicestershire choose not to renew.

Appraisals

Both
players argued that they should have been treated like any other employee and
been given proper appraisals and warnings of dismissal if they were not
performing to the standard expected.

The
key to the tribunal victory was that basic employment rights transcend all
industries – an under-performing sports player has the same rights as an
under-performing sales executive. When it comes to dismissing an employee
because of poor performance, legislation, of which the Employment Act 2002 is
the latest, expects employers to have a fair and proper procedure in place that
centres on periodic appraisal.

If
the employee is not performing against fair expectation then he/she must be
informed at the appraisal and allowed a reasonable period of time to improve
their performance, after which a further appraisal can review whether the new
performance targets have been met.

If
the employee is still under-performing, dismissal may have to be considered, in
which case the employee must be permitted a fair period of time to make a final
effort to recover the situation. At all times, the employee must be made fully
aware of what is happening and where they stand.

The
interesting factor in the Burns and Crowe case was that Leicestershire could
not actually claim poor performance by either player because of their excellent
records. Instead, they argued that the dismissals were fair for “some other
substantial reason” (Section 98 of the Employment Rights Act) – that a cricket
team must be able to improve its playing squad as it sees fit without having to
look over its shoulder to justify the fairness of its judgement that player A
is better than player B.

The
case therefore raised a further issue of whether or not cricketers could be
dismissed simply because their employer thought there was a better player to
replace them. Employment legislation does not allow any employer to dismiss an
employee just because a better candidate comes up. Therefore, Leicestershire’s
argument did not find favour with the tribunal.

In
conclusion, this case is relevant to all companies whether employing full-time,
temporary or seasonal contract staff. Companies that do not have formal
performance appraisal procedures, or whose procedures do not satisfy current
legislation, run a greater risk of being sued for unfair dismissal.

Just
as important is ensuring that all senior managers understand and follow
appraisal procedures to the letter. These are basic legal requirements that
apply to all companies – no matter what industry they operate in.

Richard
Keen is managing partner and head of employment at Owen White Solicitors and
advised Neil Burns and Carl Crowe throughout their case

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