Dismissal for historic misdemeanours – Is the Football Association guilty of doing sweet FA?
Background: Mark Sampson’s dismissal
In December 2013, Mark Sampson was appointed England Women’s head coach. On 20 September 2017, his tenure came to an abrupt end.
Sampson’s dismissal related to a safeguarding investigation conducted by the Football Association (FA) in 2014 after an anonymous complaint was made to the FA about an incident, which involved Sampson, and that occurred whilst he was in his previous role as manager of ladies team Bristol Academy.
In October 2015, the safeguarding assessment concluded that Sampson did not pose a risk working in the sport. However, the full report was only brought to the attention of the current FA leadership in September 2017.
The FA’s Chairman, Greg Clarke, and Chief Executive, Martin Glenn, decided that the safeguarding investigation revealed ‘clear evidence of inappropriate and unacceptable behaviour by a coach.’ We now know that this behaviour related to Sampson ‘overstepping the professional boundaries between player and coach.’
Select Committee for Digital, Culture, Media and Sport
Sampson’s dismissal led to far more questions being asked than answered. The Select Committee for Digital, Culture, Media and Sport met on 18 October 2017 and asked some of those questions when they invited members of the FA and some of Sampson’s complainants to determine:
- How the FA conducts internal investigations
- Whether the FA acts adequately when faced with internal complaints
- Whether the FA’s current governance structures and the attitudes of senior officials enable players to report instances of abuse
- Why Sampson was appointed in the first place
- Why it took so long for the FA to look into issues raised about Sampson’s past
- Why senior officials did not refer back to this information when a player stepped forward with serious allegations
Earlier concerns about Sampson
Sampson’s position was under scrutiny before his dismissal from the FA. In 2016, Eniola Aluko, England striker who played under Sampson, claimed that he had made racist comments to her and some of her teammates, and had bullied her whilst she was on England duty. The FA conducted an internal investigation and commissioned an independent inquiry overseen by barrister Katharine Newton. Both cleared Sampson of any wrongdoing. However, it was revealed that the FA paid Aluko £80,000 in a confidentiality agreement.
The investigation was reopened for a third enquiry after it emerged that a key witness, Drew Spence, had not been interviewed. Spence was allegedly another victim of Sampson’s racist comments. She provided the FA with a written statement supporting Aluko’s claim. Newton’s third investigation found that Sampson had made racially discriminatory remarks to both Aluko and Spence.
It is important to note that although the bullying and discrimination investigation (the ‘Aluko Investigation’) is a key feature of Sampson’s time as England head coach, the FA is adamant that it was not a factor in Sampson’s sacking. Therefore, we have not focused on the Aluko Investigation in detail here.
Adequacy of the FA’s due diligence
The FA has been criticised for failing to conduct an appropriate level of due diligence before hiring Sampson. The FA was apparently aware of issues surrounding Sampson’s conduct before he took on the England role, yet it had obviously not deemed them serious enough to prevent him from taking up a position of authority.
Although the individuals that hired Sampson are different to the ones that dismissed him, it is difficult for many supporters (and HR practitioners no doubt) to comprehend how someone could have held a position of responsibility for such a long period of time before being dismissed due to his conduct over four years ago in a different job.
Protection for whistleblowers
‘An anonymous tip off’ to investigate Sampson’s previous misdemeanours led Glenn to dismiss Sampson. The whistleblower’s identity has remained anonymous. The FA should be commended on its procedures which have allowed an individual to raise their concerns, without risk of their identity being revealed. Such procedures are crucial given the high profile nature of this case and the level of scrutiny the whistleblower would face.
However, the FA’s whistleblowing procedures should not receive too much praise as when questioned about why Spence had never been asked to corroborate what Aluko had alleged in 2016, Glenn appeared to place the blame firmly at Spence’s door. Glenn said: ‘if someone has had something said to them, the thing you would expect them to do is raise a complaint…the specifics of that complaint could then be dealt with. If you worked your whole life on hearsay, you’d never be able to run a classroom, let alone the Football Association.’
The FA claims to support whistleblowers, but when Aluko and Spence both made formal complaints, those complaints were treated as hearsay and were not appropriately investigated – opening both, Aluko in particular, to nationwide examination.
Sampson’s potential unfair and/or wrongful dismissal claim against the FA
There is speculation from the media, and indeed Glenn confirmed to the Select Committee that Sampson’s solicitors have informed him that Sampson is considering bringing an unfair and/or wrongful dismissal claim against the FA and prima facie it certainly seems like a worthwhile consideration.
The facts surrounding Sampson’s sacking raise more questions than they answer. The safeguarding investigation into Sampson’s conduct in 2015 was carried out by the FA itself and it cleared him of any grave wrongdoing and deemed his conduct serious enough only to place him on an educational course and no more. Therefore:
- Is it fair for it to effectively change its mind now?
- What warning/right to reply was Sampson given before his dismissal?
- Did the FA carry out a disciplinary investigation before dismissing him?
To defend a claim of unfair dismissal the FA would need to satisfy an employment tribunal:
- That Sampson’s dismissal was one of the five potentially fair reasons (and we would expect them to rely on conduct or ‘some other substantial reason’)
- In all the circumstances, including the size and administrative resources of the FA, the FA acted reasonably in treating the reason as a sufficient reason for dismissal.
Sampson could argue that the FA could not have a valid fair reason for his sacking because he was cleared of any grave wrongdoing in 2015 and that they have delayed dismissing him. He had been allowed to carry out his role without any restrictions for almost three years after the investigation, thus demonstrating his ability to perform the role and questioning the fairness of the FA’s decision. That may now be a more difficult argument to run following Newton’s conclusions from her third investigation.
Conversely, the FA will likely argue that the full details of the safeguarding investigation into Sampson were only recently considered by the FA’s current leadership and that the allegations in the investigation were fair reasons to sack him and that in all the circumstances it was fair to sack him.
Wrongful dismissal is a dismissal in breach of contract i.e. whether the FA has breached one (or more) of the terms of Sampson’s employment contract in dismissing him. An example of this could be if the FA dismissed Sampson before undertaking a full disciplinary investigation if that step was stipulated in his contract.
It is understood that Sampson’s salary at the FA was between £100,000 and £150,000 per year, and that he received a pay-off equivalent to nine months of his salary, whilst he still had two years left on his contract. Although the statutory cap for an award for unfair dismissal is lower than Sampson’s annual salary, it is possible that the FA may attempt to agree an ‘out of court’ settlement, if necessary, to avoid any further negative publicity.
Key elements of the inquiry before the Select Committee for Digital, Culture, Media and Sport
As mentioned above, some of the questions raised by Sampson’s sudden dismissal were addressed on 18 October 2017 when Glenn and Co gave evidence before the Digital, Culture, Media and Sport Committee.
The key points arising out of the meeting from the FA’s evidence are:
- When asked why it took so long for Glenn and Clarke to read the safeguarding report that led to Sampson’s dismissal, Glenn said that the report was presented to him in October 2015 as a ‘closed case’ and was not read to maximise confidentiality.
- Rachel Brace, HR Director at the FA, received an anonymous tip-off to read the safeguarding report which prompted Brace to inform Glenn. Glenn said that as soon as he read the full report, he fired Sampson. He added that he should have been aware of the wider concerns within the report at an earlier stage.
- Greg Clarke admitted that a process of due diligence, which the FA carries out now, did not happen before Sampson was appointed.
It is fair to say that after the fallout from Sampson’s sacking and the Committee meeting, the FA has had better days. The problem is, however, how long it took for it to become aware of his previous conduct given that Sampson was sacked for his actions in a previous role, after having been head coach of England for almost four years.
Some of the quotes from the Committee meeting will have given Sampson and his lawyers plenty of food for thought when considering his next move. Committee member, Jo Stevens MP, told Clarke during the meeting that she had ‘never heard such shambolic evidence about the governance of an organisation’, and at the end of the meeting, Damian Collins MP suggested that the representatives from the FA may not be the right people to lead the organisation.
There is an evidence session with the sports minister, Tracey Crouch, this month (November 2017) with the report on governance expected to be published in 2018. The report seems certain to recommend an independent body be set up to scrutinise the FA and will likely suggest an overhaul in how it deals with grievances. There may very well be recommendations made regarding the FA’s due diligence and investigations procedures.
For now, the case serves as a reminder that previous misdemeanours committed by staff may justify dismissal, but we would recommend a far more comprehensive and diligent approach to be taken than the FA did.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.