In McCormack v Hamilton Academical Football Club Ltd, Sept 2010 in the Scottish Court of Session, Mr McCormack was employed by Hamilton the Club as its Assistant Manager in June 2008, and summarily dismissed a couple of months later. He brought a claim for wrongful dismissal (in breach of contract). The Club argued that he’d been guilty of misconduct on a number of occasions and that the cumulative effect enabled them to summarily dismiss him.
The Court of Session held that taken in isolation, no single one of the allegations could justifying summary dismissal. The next question, though was whether the cumulative effect of Mr McCormack's misconduct had caused the Club to reasonably lose it’s trust and confidence in him.
Some of the allegations (for example, that Mr McCormack had behaved inappropriately on the touchline and in the dressing room) were proven, but others (for example allegations that he had bullied certain players) were not. Furthermore they did not seem to have been material to the decision to dismiss. Taken in the round, Mr McCormack's conduct did not merit summary dismissal. He had been wrongfully dismissed.
The decision might have been different if the Club had issued a formal warning to Mr McCormack at the time. The obligation of confidence and trust is a mutual one: the Club itself was under a duty to keep Mr McCormack fully informed of any perceived deficiencies in his conduct during the course of their employment. That did not occur here.
Some employers reading this may think Hang on, cant we dismiss for any reason in the first year of employment? The answer is that employees cannot normally claim unfair dismissal in the first year of employment. Mr McCormack claimed wrongful dismissal. The Club would have been fine had it observed its contractual notice provisions. Employers should tread very carefully if they want to dismiss summarily for a series of disciplinary issues.
With thanks to Emplaw.co.uk for news of this decision.
James Carmody
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