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Richard Keogh vs Derby County Football Club – Has the club dismissed fairly?

Most UK football fans will be aware of the incident that led to Derby County Football Club sacking its former captain, Richard Keogh, for gross misconduct last month (October 2019).

For those who have not followed the story, here is a brief summary of the events that led to Keogh’s sacking:

  • On 24 September 2019, the Derby County players were enjoying a club-sanctioned, team-bonding day.
  • It is understood that the players went bowling in the afternoon and then stayed in a bar for the rest of the evening.
  • Most of the squad left the bar and went home in taxis organised by the club, but Keogh, and fellow team-mates, Mason Bennett and Tom Lawrence stayed and continued drinking.
  • Bennett and Lawrence both decided to drive home from the bar, with Keogh in the back seat of Lawrence’s car. Both Bennett and Lawrence were well over the drink driving legal limit.
  • During the journey, Lawrence’s vehicle went into the rear of Bennett’s car, with Lawrence’s car going across a roundabout and crashing into a lamppost.
  • Bennett and Lawrence were not injured in the accident. Keogh, however, suffered a knee injury that is estimated to prevent him playing football for around 15 months.
  • Bennett and Lawrence were both charged and pleaded guilty to drink driving and failing to stop at the scene of an accident. They were banned from driving for two years and ordered to carry out 180 hours of unpaid work.
  • Derby County commenced an internal disciplinary investigation into the matter and fined Bennett and Lawrence six weeks’ wages – the maximum their respective contracts would allow. The club sacked Keogh for gross misconduct.

An initial view is that Bennett and Lawrence were lucky to avoid a custodial sentence and to keep their jobs.  Keogh can consider himself rather unfortunate to have had his contract terminated given the sanctions handed out to the others and the fact that he was not the subject of criminal proceedings.

It is understood that Keogh was dismissed because he was held to a higher account by the club because he was the captain of the team.  It is further understood that the club offered Keogh a proposal where he could stay at the club if he accepted a reduction in wages.  Keogh turned this down and has appealed the club’s decision.  At the time of writing, the appeal hearing is yet to be heard.

Without having had sight of the papers in relation to the investigation, it is difficult to speculate how or why the club came to the decision that it did in relation to all three of the players involved.  However, based on the statement released by the club, the decision to sack Keogh looks incredibly harsh and flawed against the backdrop of the leniency afforded to Bennett and Lawrence.  This is particularly so, as Keogh was initially offered a reduction in wages to stay at the club, and when he refused, was dismissed for gross misconduct.

It appears that the age of the players involved is a key factor in the club’s decision.  Bennett and Lawrence are 23 and 25 respectively.  They are both young in footballing terms and are therefore valuable assets to the club.  Barring any serious injuries, they have at least another 10-15 years of their playing careers left and have a notable resale value.  Keogh on the other hand, is 33 years old, a lot closer to the end of his playing career and with a limited resale value.  The dismissal could potentially be discriminatory because of Keogh’s age.  Considering he is facing 15 months out of action, it seems clear that the club does not want to keep paying him his sizeable wages whilst they do not get any meaningful output from him.  Questions will likely be asked if he can return from the injury to the same level that he was at before the accident and, if so, how long does he have left playing at that level.

According to the Professional Footballers’ Association (PFA), the average retirement age for a professional football player is 35 years old; Keogh will be 34 at his estimated return date.  Perhaps the overriding basis for Keogh’s dismissal was his age and the financial implications linked to that, rather than because he was the captain and he should have known better.  Bennett and Lawrence were treated very differently, in fact, they have both already been reintegrated into the squad and are featuring for the first-team again; therefore, it is not surprising to see that Keogh has appealed against his dismissal.

This case is a good reminder for employers to ensure that if multiple employees are involved in an incident (or an employee is being investigated for something similar to that of another/previous employee), they should be treated consistently (that is not to say that the outcome for each of them has to be the same), but care should be taken not to inadvertently discriminate against an employee when coming to a decision.

We will report the outcome of Keogh’s appeal hearing when it is released.

If you have any questions regarding investigation or disciplinary hearings, please contact Safwan Afridi.


Disclaimer

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.

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