Dismissal for Gross Misconduct
The 33-year-old Republic of Ireland defender and Derby County Football Club (Derby) captain, Richard Keogh was dismissed by Derby earlier this month for “gross misconduct” under his employment contract after he was a passenger in a drink-driving incident.
Mr Keogh’s two younger teammates, who were involved in the crash and admitted to drink-driving, each received a 12-month community order and two-year driving bans after appearing in Derby Magistrates’ Court. However, they have continued to feature for Derby after each being fined 6 weeks’ wages.
After undergoing serious knee surgery as a result of the drink-driving incident, Mr Keogh is expected to be ruled out of action for 15 months. Derby offered to keep Mr Keogh on but at a significantly reduced salary. When Mr Keogh refused this offer, his employment contract was terminated for gross misconduct. As captain, it seems that he may have been held to a higher standard than that of his two teammates.
The player has consulted lawyers and the Professional Football Association (PFA) has also become involved in the matter. The PFA have vowed to “robustly defend our member because we feel he has been unfairly treated”. Mr Keogh’s international manager, Mick McCarthy has weighed in on the controversy, “I know they (English PFA) have taken it on and so they should be, that’s where they (players) really need help in cases like that”.
Implications if a Similar Case was Heard in Ireland
An Irish contract of employment would typically give scope to an employee to apply to the High Court for an injunction seeking to restrain the dismissal pending a breach of contract hearing. In a case similar to Mr Keogh’s, an injunction could be sought if there were grounds that the employer allegedly failed to afford fair procedures in conducting the disciplinary process or terminated the employee’s employment in breach of contract. Although injunctions can be costly, they can be extremely effective. Injunction applications for employment terminations are very rare in the UK.
A claim could also be made to the Workplace Relations Commission (WRC) under unfair dismissal legislation or under employment equality law. The Employment Equality Acts 1998 to 2015 prohibit discrimination on nine grounds, including discrimination in relation to age and disability. It could be argued that Mr Keogh was discriminated against on grounds of age or disability, in comparison to his younger, un-injured teammates, who were kept on by Derby. The disability ground has been held to cover short-term injuries such as knee injuries or whiplash.
The remedies available for a successful claim to the WRC can include an order for compensation up to a maximum of two years’ remuneration, reinstatement or re-engagement.
It was reported that Mr Keogh lodged a formal appeal against his termination on 12 November 2019. We await news on the outcome of this appeal and whether Mr Keogh will take a claim against his former club.
Lesson for Employers
This case highlights the importance for employers in the sports industry to take appropriate advice before implementing a dismissal. In Ireland, employers can risk claims to the WRC and potential injunctions to the courts, which can be both costly and time-consuming. Employers also risk reputational damage that could also have an adverse effect on support and sponsorship.
Where multiple employees are involved in an incident, such as in this case, it is important that the employees are treated consistently. Whilst this may not necessarily amount to the employees being provided with the same outcome, it is important that an employer can stand over the consistency in the process. In this regard, employers should ensure that their disciplinary policies are carefully drafted and consistently followed where any disciplinary issues arise.
For further information, please contact Catherine O’Flynn, or your usual William Fry contact.
Contributed By: Therese Chambers and Bill Ryan
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