Peta Fluendy is employment law consultant at Sutton based De Brett and Co’s
http://www.iambeingfired.co.uk/
This is a spoof solicitor’s advice letter to the Football Association to answer some employment law issues which are relevant to any company.
Dear Sir Dave
You have asked for advice about your employee Mr Fabio Capello. You have instructed us you feel that his position is untenable. You have specifically asked us: “Why can’t I just fire him? He was pants.”
Thank you for your enquiry.
You instructed us that that you re-wrote Mr Capello’s employment contract last month. Regrettably, it appears that you did so before taking advice. You signed him for two further years on a contract which had no “escape clause,” which would have allowed you to dismiss him. You instructed us further that you did so just prior to the England team’s departure for the World Cup tournament because Mr Capello was inter alia “waving a £10 million contract with Inter Milan in your face.”
You now wish to dismiss Mr Capello because of competency issues. Specifically, you refer to the aforementioned tournament culminating in the “embarrassing trouncing” by Germany.
We will of course need to see a copy of the new contract. It appears, however, that your position is complicated by the contract.
Most employment contracts, and indeed the law, permit employers to dismiss staff for inefficacies and incompetence, providing proper procedures are adhered to. This option may well be closed to you because of the new contract.
You have two alternative options.
The first is a Compromise Agreement between yourselves and Mr Capello. A Compromise Agreement will entail negotiations with Mr Capello and will require that you and he find a mutually agreed settlement. This settlement is likely to be a cash payment from you and a “release” from the rest of his contract. In return he will agree to take no legal action against you whatsoever over the severance and will “resign” from his post.
It is also advisable that the compromise agreement contains clauses banning you and he from publicising the terms of the agreement or details of the negotiations. You may find it convenient to have a legal reason not to publicise these.
Compromise agreements are legally binding and are governed both by contract law and section 203 of the Employment Rights Act. To be effective, the agreement will need to be in writing and signed by you and Mr Capello. Both you and he will also need to demonstrate you have received independent qualified legal advice about the contents of the agreement and its implications.
Given the size of his remuneration and the extension of the contract, notwithstanding previous alleged interest in retaining his services by top Italian clubs, Mr Capello and his advisers are likely to hold out for a substantial sum.
A second option is to begin the dismissal process for the England players to pre-empt a claim from Mr Capello.
Mr Capello may argue it was they, and not he, who let four goals in. He may choose to bring a claim for breach of contract both for the severance of his contract and for your own failure to equip him with competent English players to choose from.
This option will require you to nationalise some overseas players to staff a new team. May we suggest you call the English Cricket Board for advice on this process?
We regret that neither of these options is entirely palatable. However it is likely that the main stake holders in this matter or “fans,” as you term them, are by now, well used to unpleasant surprises.
We look forward to receiving your further instruction.
Yours sincerely.
The relevance to companies here is obvious.
Any company might find itself anxious to attract a star member of staff. The lesson is not to act too quickly before taking sound advice and drawing up a water tight contract.
Compromise Agreements can be a cheap and effective way of avoiding the stress and expense of litigation, when someone has to leave in a hurry.
Tags: compromise agreement, contract, employment contract, employment law, Fabio Capello, fire, Peta Fluendy, resign, sack, tips
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