Belfast Telegraph

Sports bodies have own disciplinary procedures, but key principle will still be fairness

By Louise McAloon

As a matter of law, the privacy of any internal investigation affecting individual employees or workers must be respected.

Consequently, it is entirely right and proper that details of the recently announced internal review being conducted by the IRFU and Ulster Rugby "in line with existing procedures for all contracted players" are not released into the public domain. Similarly, the following is provided by way of general employment law guidance only and is entirely unrelated to any current or ongoing investigations.

Sporting bodies or organisations will usually have their own set procedures or protocols under which they will conduct internal investigations in relation to any allegation of wrongdoing, misconduct or breach of an internal code of conduct by a player or member.

Where a player is engaged as an employee, the organisation will ordinarily have a disciplinary policy and procedure including rules which identify examples or categories of unacceptable conduct, the degree of severity with which it is regarded and how acts of misconduct, if substantiated, will be dealt with in terms of potential sanction.

While each organisation will adopt its own disciplinary policy and procedure, the key principles of any procedure should ensure that a fair and reasonable investigation is undertaken.

An employee must be made aware of the allegation against them and provided with the relevant evidence in relation to this, they should be made aware of the risk of dismissal where dismissal is being contemplated, that they are allowed to make representations at a disciplinary hearing and finally will be afforded a right of appeal. Where an allegation of unacceptable conduct is upheld, the range of sanction may vary from one organisation to another depending on the terms of their procedure but may potentially include a verbal warning, a form of written warning, unpaid or paid suspension, demotion, a financial penalty or dismissal with or without notice.

Where a player is engaged on a contract for services and is not an employee, an organisation will have a separate procedure or protocol under which a similar investigation and hearing process usually takes place and right of appeal afforded.

There is, however, little statutory regulation for non-employee investigation processes and any disputes tend to centre on the terms of the contract as entered into between the parties. Jamie Carragher was recently suspended from his job as a Sky Sports football pundit until at least the end of the season after he was filmed spitting into a car, leaving open for now the possibility of a continued working relationship.

In employment law, case law has established that conduct outside "work" or outside the conduct of a work contract can potentially constitute grounds for disciplinary sanction short of dismissal or the termination of a contract.

In determining whether wrongdoing has occurred and whether any sanction ought to be applied, consideration may be given to whether the alleged conduct has undermined the trust and confidence between the parties, adversely impacted the working relationship, damaged the employer's reputation or contravened an express rule or policy in relation to misconduct or the use of social media.

Each case must be looked at on an individual basis having regard to all of the evidence and circumstances pertaining to a particular allegation and the equity and substantial merits of the case.

Employer organisations are often advised to adopt a proportionate approach in relation to potential damage to their reputation, merely because conduct that does not put them in the best light comes into the public arena does not automatically equate to grounds for disciplinary sanction.

Louise McAloon is a partner in Worthingtons Commercial Solicitors, Belfast

Belfast Telegraph

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