Background checks and damage limitation – lessons to be learned from the Sampson saga

21 September, 2017
by: Cripps Pemberton Greenish

What would you do if you discovered an employee isn’t legally prevented from carrying out their role but their previous actions don’t sit well with your values?

Allegations

Mark Sampson, the now former manager of the England Women’s  football team, and the FA have barely been out of the news in the last month.

It all started when Eni Aluko raised serious allegations including accusations of racism. Following an investigation and the signing of a settlement agreement with Aluko, the FA and Sampson may have thought the matter had disappeared. However, the matter found its way into the public domain and the FA has been under substantial pressure to investigate the matter further.

>>> When settlement isn’t settlement

Sampson had received a fair amount of support from several team members and the FA had appeared to be backing him. This all changed very quickly. Why?

Previous Conduct

Reportedly, last week the FA was recommended to re-examine a report from 2015, by its own safeguarding panel, into Sampson’s relationships with players at Bristol (where he coached the 16-19 year old academy players and the women’s first team).

Despite no accusation of illegal activity and the above report finding Sampson was free to continue working in football (suggesting no safeguarding issue), the FA have made the decision to terminate Sampson’s employment.

Martin Glenn, CEO of the FA, stated that the decision was not influenced by or related to the previous allegations by Aluko and others.

>>> Settlement agreements – 5 things you need to know

Further, Glenn has said he should have looked into the report in more detail when he was first informed of it in October 2015 (but had not done so because it was a confidential report), suggested had he been aware of its full details he would have looked into it more carefully, and such previous conduct was not suitable for an employee of the FA.

Issues raised by the Sampson saga

This matter raises a multitude of interesting issues, including:

Background checks

  • How much investigation/background checks should an employer do before recruiting an individual, especially if it is a high-profile position?
  • Realistically, how much relevant information could you receive from a former employer?
  • As an employer you should be cautious about revealing details of conduct/disciplinary issues about former employees – it could leave you open to claims from the former employee.

How to respond?

  • An employee has not broken the law and is not prevented from carrying out their duties, but doesn’t fit your values. How do you respond? Is this impacted by how successful they are in the role? How does this apply in the care industry and the teaching profession?

Termination

  • It is understood that the remainder of Sampson’s fixed term contract up to 2019 has been paid out. His contract may have permitted for such early termination and, even if it didn’t, by paying out the remainder of the agreement the FA mitigated Sampson’s potential claim for damages for loss of earnings during the remainder of the contract (a wrongful dismissal claim). Separately, since he has two years’ service, Sampson could also have a claim for unfair dismissal on the basis a fair process was not followed and/or the reason for dismissal was unfair. In any event, it is likely Sampson has entered into a settlement agreement.
  • If Sampson had been employed for less than 2 years (i.e. without unfair dismissal protection) and on an indefinite contract it is likely he would have been terminated simply on notice.

Other investigations and publicity

  • If an employee is terminated, would you continue to investigate other outstanding serious allegations which question internal policies and processes?
  • The matter highlights the levels of negative publicity an employer’s decisions can attract.

Please get in touch if you have any queries regarding background checks, disciplinary processes, or terminations.