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Richard Keogh, who was sacked by Derby but has appealed the decision

Sack race RICHARD KEOGH

It is easy to forget that footballers are employees under the same legal framework as any employee in the UK. Employment law for those on the pitch has been warped by the immense financial and reputational pressures within the industry, with clubs willing to forgive most misdemeanours for the sake of retaining their best players.

However, every so often the usual rules apply: two Sunderland players were sacked for breach of contract in 2018 and Lamine DiabyFadiga was recently fired by Nice for stealing a colleague’s (reportedly £60,000) watch. Richard Keogh’s name can now be added to that list after his well-publicised dismissal from Derby County after a team bonding night got out of hand.

The pertinent facts are relatively simple: Keogh was in the back seat of a car driven by team-mate Tom Lawrence while another player, Mason Bennett, was driving his own car. All had been drinking heavily and Lawrence crashed into a lamppost, seriously injuring Keogh in the process. Keogh’s injuries leave him on the sidelines for at least 12 months, he refuses to accept a pay cut and is then sacked for gross misconduct. Lawrence and Bennett, however, are given lesser disciplinary sanctions despite being convicted of drink driving and fleeing the scene. In light of this, Keogh’s dismissal has been criticised by the public and pundits alike who have claimed that this is unfair.

For an employer to dismiss fairly for misconduct the dismissal needs to be procedurally fair (carrying out hearings and investigations etc) and substantively fair (reasonable to dismiss for the reason relied upon). In situations such as Keogh’s, substantive fairness is the key issue as where guilt is not in doubt less is expected of an employer procedurally and, in any event, Derby carried out a disciplinary process and offered an appeal.

Crucially, whether an employee suffers an injustice and/or whether a tribunal would

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Tom Lawrence and Mason Bennett arrive at court on charges of drink driving have taken a different approach is irrelevant here. For a dismissal to be fair it must fall within what is known as the “range of reasonable responses” open to an employer. This recognises that employers may react in different ways when facing the same circumstances – all of which are reasonable – and only a reaction falling outside of that “range” will be unfair.

So, is dismissal within the range of reasonable responses open to a hypothetical reasonable employer dealing with an employee in Keogh’s situation? Given the reluctance of tribunals to interfere with managerial prerogative in this area, it’s highly likely the answer to this question would be yes – some may not have dismissed, but it was within the range of reasonable responses to do so.

Disparity of treatment can, however, render a dismissal unfair and it would be legitimate to challenge Keogh’s dismissal on the basis that Lawrence and Bennett, who clearly committed more serious misconduct, were merely fined six weeks’ wages. The problem for Keogh is that his situation is not truly parallel to that of his two team-mates. Derby could, and almost certainly would, argue that as Keogh was a senior player and as the club captain more was expected of him in these circumstances, and again tribunals here have shown deference to managerial explanations for differentiation.

However, these cases are never black and white, and Derby’s offer to Keogh allowing him to stay on a reduced salary muddies the waters – was it actually the misconduct which motivated the dismissal or Keogh’s wages and the fact that a 33-year-old defender has little resale value? If a tribunal found the latter, this could fundamentally undermine Derby’s position.

Derby, though, probably took the risk to dismiss Keogh mainly because this made financial sense. Compensation for unfair dismissal is made up of a “basic” and “compensatory” award which is capped at an overall maximum of £102,194 – roughly four weeks’ wages for Keogh as opposed to the approximately 18 months’ wages remaining on his contract (for at least 12 of which he would be injured). Unfair dismissals must be litigated in the tribunals therefore in order to avoid this cap Keogh would need to bring a breach of contract claim in the civil courts – something he may struggle to do on the basis of the publicised facts (though this depends on the particular terms of his contract).

At the time of writing Keogh has appealed his dismissal but I doubt this case will end up in a tribunal. Derby are still financially better off even if they give Keogh a settlement in the sum of the maximum amount of compensation he could possibly win, which would end matters there if accepted.

In the end, it may well be that Keogh’s injury and length of contract were the deciding factors, with the thought of paying £25,000 per week to someone who is out for the majority of the remainder of his contract due to his own stupidity too much for Derby to stomach. Lawrence and Bennett, meanwhile, can count themselves lucky.

Jonothan Scollen

Scenes from Football History

No 339

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