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Assistant manager takes advantage of fundamental lapses in football club’s defence

Judge highlights failures by employer to produce documents to support dismissal. For all employment law advice in Glasgow, please contact us.

It is the top league in our national sport, with the players and managers sharing in lucrative wages and enjoying high media profiles. With the financial stakes so great, you might assume the hiring and firing of senior employees would done “by the book.”

You would be wrong. The removal of John McCormack as assistant manager of Scottish Premier League side Hamilton Academical, and his subsequent court action against the club, has demonstrated that even at this elevated level, expensive mistakes can be made.

Having only been employed by the club for two months before being dismissed, McCormack did not have the one-year’s service which would entitled him to bring a claim to the Employment Tribunal for unfair dismissal.

It is not clear whether this lulled Hamilton into failing to adopt the best employment practices when they were considering terminating his employment. But whatever the reason, they have now found to their considerable cost that a lack of documentation can be crucial in cases where a disgruntled employee decides to take matters further.

McCormack, who had a long playing career with St Mirren and Dundee before going on to manage a number of clubs, claimed wrongful dismissal and breach of contract, rather than unfair dismissal. The Court of Session has now found in his favour and, although the sum of money he will be awarded has yet to be determined, it is almost inevitable that Hamilton will have to pick up McCormack’s legal fees as well as their own for two lengthy sittings in Scotland’s most expensive court, hearing evidence from around a dozen witnesses.

The judge who heard the evidence, Lord Woolman, found that the club did not have a basis in law for dismissing McCormack, even though he accepted evidence from the club that during his brief time at the club, the assistant manager had shouted and sworn at some of Hamilton’s young players, made inappropriate sexual comments to a female physiotherapist and undressed to take a shower in front of her.

It is clear from his judgement that Hamilton’s failure to produce any written records to support their case was a factor in Lord Woolman’s judgement. It is also clear that the judge was not impressed by the club’s failure to demonstrate that their employee had been given appropriate warnings about his behaviour.

“A curious feature of this case is the absence of documentation in the period leading up to the dismissal,” he said.

“There is no written record of any complaints made against Mr McCormack by the players or their parents; no written warning issued to Mr McCormack in respect of any of the seven incidents; no record of any formal oral warning having been administered; no report of any internal enquiry or legal advice; and no board minute deciding that Mr McCormack should be dismissed, although the removal of the assistant manager was said to be a board matter.”

He said the absence of documentation came despite the club chairman, Mr Ronald Macdonald, who had his own business and employed more than 100 people, giving evidence that: “I’m a man who likes things in black and white”.

The judge went on: “I describe that absence as curious, because where an employee is dismissed for a number of matters it is common to find these set out in detail on his or her file.

“That matter can be coupled with a further observation. It is not alleged that Mr McCormack failed to comply with any instructions given to him by Hamilton. Such a failure often provides a clear example of conduct that undermines the mutual obligation of trust and confidence owed between employer and employee. In my view, one must therefore scrutinise with care the factors which are said to justify summary dismissal.”

Having done so, the judge concluded that the club did not have sufficient justification for its decision, and therefore the dismissal was wrongful.
Guidance by ACAS regarding record-keeping in relation to warnings is now regarded by the courts and Tribunals as so well-established – and, in the Internet age, so easily accessible – that any employer who fails to observe this is taking a huge and unnecessary risk.

The guidance is clear that, whether you are a high-profile SPL manager or someone who has yet to make it out of the reserves, you are entitled to be treated the same way by your employer.