It is important in a workplace to understand the concept of misconduct, usually defined by specific guidance in an employer’s disciplinary procedure. There will be examples of types of misconduct, including gross misconduct, and it is also common for this to include fighting as an example of conduct which may lead to summary dismissal.

Luis Suarez bites Branislav Ivanovic

Suarez tussling with Ivanovic just after biting the Chelsea defender (image courtesy www.skysports.com)

I can think of examples in a workplace when assaults have occurred, including involving co-workers or third parties. It would be usual in such cases for the incident to lead to a charge of gross misconduct and for summary dismissal to follow. That would mean that the individual would not receive any notice pay, and if a case was pursued to an Employment Tribunal it is very likely that a Tribunal would conclude that a dismissal was fair. In addition, the co-worker could consider pursuing a claim for compensation in respect of the assault, or through the Criminal Injuries Compensation Scheme, subject to the severity of the injury.

Finally, if a person was guilty of an assault on a co-worker or third party, the matter could be referred to the Police and subject to the evidence it will be possible for a criminal prosecution to follow with the person charged with assault, once again the final charge would depend upon the severity of the incident.

On Sunday 21 April 2013 Luis Suarez was seen by thousands in attendance at Anfield and millions watching on television to bite the arm of the Chelsea defender, Ivanovic, playing in opposition. In this situation, the Chelsea player was not a co-worker because they are not employed by Liverpool FC, they were in effect a lawful visitor to Anfield, interacting with an employee of Liverpool FC, namely Mr Suarez. On performing the assault Mr Suarez could have been subject to a criminal prosecution, and it is a surprise that the matter has not been investigated by the CPS, bearing in mind how other incidents had been dealt with in the past, such as that involving Duncan Ferguson who ended up going to prison. It may be that the victim of the assault does not wish to pursue charges, but the CPS have a public duty to address criminal conduct in society and it could not be said that the incident had no witnesses or a lack of evidence.

This brings me to the position of Liverpool FC as Mr Suarez’s employer. Under the Club disciplinary procedure (or the ACAS Code) an assault upon a third party who was a lawful visitor to his workplace could lead Mr Suarez to face a charge of gross misconduct. Bearing in mind previous conduct issues, it would have been possible for LFC to pursue the misconduct charge and to fairly dismiss Mr Suarez by reason of gross misconduct. However, this brings us to the reality of the current position which is that we are dealing with an employee who is not simply a worker, he represents perhaps the most substantial asset of the business, certainly on the field of play. It is also the reality that in all workplaces, the way on which conduct or other similar issues are dealt with is dictated in part by the value of the employee to the business and the extent to which the owners are prepared to grant latitude, placing a greater value upon the asset, rather than consistency as to how issues of gross misconduct are dealt with. No-one expects that Luis Suarez will be subject to formal disciplinary action by LFC, beyond the internal fine which has already been imposed. No-one expects that Mr Suarez would be dismissed by reason of gross misconduct, and when a football business is dealing with its most valuable asset, it would be difficult to envisage of almost any circumstances which might lead to the contract of that asset being terminated.

Perhaps the real punishment for Mr Suarez and LFC is the imposition of the 10 game ban by the FA arsing from the external disciplinary process. It will be interesting in the future when dealing with an Employment Tribunal claim for a non-footballer to run the argument that fighting in the workplace should not be treated as gross misconduct, relying upon how LFC have dealt with Luis Suarez. No doubt the response of an Employment Judge dealing with such a case would be interesting, and I would not hold my breath expecting that other employers or Employment Tribunals would decide that the Suarez case has established any form of precedent.

By Stephen Pinder, head of EAD Solicitors Employment Department