Technical question about HR and employment law etc

[B.W.]

The club are going for breach of contract, not redundancy. That is a red herring.

 

[ROSM]

I don't believe that roles must be advertised although it would be interesting what the club policy is (having a policy supersedes any legal element). Perhaps the club handbook may have a section on it. I do doubt that it would have a clause saying all riles must be advertised because they didnt do it when they recruited Herr doctor.

As for redundancy. Getting rid of a role and having an almost identical one with a slightly different name isn't enough. They have to materially prove the new role is not a minimum of 75% the same role (this is not a legal definition but is seen as an equitable benchmark) So as this person now seems to report to Burke and has little or no say in recruitment of contracts then that should be possible.

But given that they can quote expediency as the reason to place an interim and even if he wins an appeal, he's never coming back, I don't believe this is a material matter in this dispute.

 

[Not Andy Naylor]

The club are going for breach of contract, not redundancy. That is a red herring.

True, but if they lose on appeal ...?

 

[Barrel of Fun]

In answer to the opening post and according to an expert in employment law...

The club do not have to advertise to fill the position.

Gus isn't redundant (he was dismissed). The post of manager is now redundant.

 

[Barrel of Fun]

True, but if they lose on appeal ...?

The tribunal can't force his reinstatement, so he would stand to gain a financial settlement. The figure dependant on his contract.

 

[Tooting Gull]

Interesting point about the media. I would go further, I can't remember a single occasion when a decent vacancy was advertised on the writing/reporting side. It is entry-level only places that are advertised. All better paid and senior positons are a call, a nudge, a wink and who you know.

Slightly different on the production and digital side, where more senior positions are advertised from time to time, although still nowhere near the level of other professions.

As it happens I am at Croydon Employment Tribunal tomorrow on a personal matter. If I see anyone interesting hanging around (Gus, discarded Palace squad members) I will report back.

 

[warmleyseagull]

In answer to the opening post and according to an expert in employment law...

The club do not have to advertise to fill the position.

Gus isn't redundant (he was dismissed). The post of manager is now redundant.

Correct that it is POSTS not people that are redundant but you cannot engineer a redundancy by making a post "redundant" then substantially reinstating it under another guise. In my school, (I guess this is generally public sector practice) someone whose current responsibilities match 60% of those of a new post is deemed to be slotted into the new role. This does not necessarily apply to private sector but is a guide to what a tribunal might look at. I cannot think that the club is trying to say the position occupied by Gus is redundant;

 

[Barrel of Fun]

Yes quite. In the private sector, you would surely be able to claim unfair dismissal, if you were made 'redundant', but then a similar/identical post was created and filled.

 

[Dandyman]

Not just education, but in a lot of other services where funding and employment practices are subject to public scrutiny. Schools and other public services are run in a way that is supposed to be "accountable" to voters and other "stakeholders". But this doesn't get a requirement into employment law to advertise all posts (or, indeed, any posts in an organisation with different accountabilities). If you do advertise, though, you must comply with obligations not to discriminate without justifiable reasons.

Indeed. Also the Local Government Act states that appointment to any post in LG must be on merit, which in practical terms and to avoid claims of illegal discrimination means competitive selection whether internal or external. Organisations not bound by legislation can appoint who they like as long as it does not mean they are discriminating against anyone with a "protected characteristic".

The redundancy issue would be interesting if GP was still employed as it could be claimed that the employers duty to mitigate against redundancy would mean some sort of matching exercise and potential ring-fenced interview would be on the cards if the manager's post had been made redundant. However he is (appeal pending) no longer an employee and I suspect we will stick with a European style set up for the immediate future which makes it all a bit of a red herring IMO.

 

[16bha]

I work in HR so have found this whole thing very interesting.

What I find strange is the time it has taken to conclude the disciplinary. These things are to be done quickly and cleanly, not 6 weeks or whatever.

This makes me think the it's the lawyers and agents who have been making the mess here, as you would expect.

The club's credible use of employment law is to be applauded, but I think (just my opinion) that the toing-and-froing between the two parties has probably been as messy and ungentlemanly as any other business in football.

With regards to the Oscar appointment, I think this was very, very brave of the club while the sacking is at appeal stage. If Gus thinks he has a case this could go to Tribunal, which is public *gulp* ... Doubt Gus wants this going public.

Not necessarily. The role of head coach may currently "report" to the current team manager role. When the fiasco is over, the team manager role could be removed from the structure, and a new reporting line put in place. One possible get out.