McCammon v Gillingham Football Club – employer victimised footballer for raising discrimination complaint

redmans-blog-analysisIn the case of McCammon v Gillingham Football Club & anor (ET/1100815/11) the Employment Tribunal held that Mr Mark McCammon, a professional footballer at the time, had been victimised by the club that he played for because he had made an allegation of discrimination against the then-head coach of the club, Andy Hesenthaler. The Tribunal also found that Mr McCammon had been subjected to an unauthorised deduction from his wages by the club, although this was unrelated to the victimisation claim.

Mr McCammon, who is black, was signed by Gillingham Football Club (“Gillingham FC”) in July 2008 on a fixed three-year term. Mr Scally, the club’s chairman, negotiated Mr McCammon’s contract. In June 2010 Mr Hesenthaler commenced employment with Gillingham FC as the club’s first-team manager. Mr McCammon was injured and had not played for Gillingham FC for most of the 2009-10 season. By September 2010 Mr Hesenthaler had formed the view that Mr McCammon did not form part of his plans for Gillingham FC moving forward, as he did not believe that Mr McCammon was putting 100% effort into training and that he was a bad role model for younger players. Mr Hesenthaler informed Mr Scally of his decision and Mr Scally told Mr McCammon that he would not play further for Gillingham FC, prompting negotiations to take place regarding a potential settlement agreement. However, it was not possible for the parties to come to mutually-agreeable terms for the settlement agreement.

On 30 November 2010 there was heavy snow. Non-injured footballers were told, on this basis, that they would not have to attend training that day but injured footballers were told that they would have to attend the club for treatment. Mr McCammon, who lived two miles away from the club with two other players, contacted the club that day to state that they could not report for treatment because of the heavy snowfall. Mr Scally was informed of this and insisted that they attend the club, informing them that they would be docked two weeks’ wages if they did not do so. Upon attendance at the club that afternoon Mr McCammon commented to the physiotherapist that another white colleague who was injured and lived close to the club was not at the club. Mr McCammon then went to Mr Hesenthaler’s office, whereby an argument took place; the accounts of Mr Hesenthaler and Mr McCammon as to what happened differed, but Mr McCammon alleged that he complained that black players were being treated differently, that he felt that he was being discriminated against, and that Mr Hesenthaler threw a table at him and asked him to “fuck off”. Mr Hesenthaler’s account of what happened was that it was Mr McCammon who had acted aggressively and that Mr McCammon had accused him of being racist.

Disciplinary proceedings were subsequently brought by Gillingham FC against Mr McCammon, with the allegations being that he had acted in an aggressive, threatening and violent manner on 30 November 2010, and that he had made “serious accusations” of racism against Mr Hesenthaler and the assistant coach.

A disciplinary hearing chaired by Mr Scally took place in January 2011, with Mr McCammon’s representative only being sent the evidence for the hearing the day before. Mr McCammon was subsequently sent a letter informing him that he was being dismissed on the grounds of the allegations brought, namely that he had acted aggressively on 30 November 2010 and that he had made serious accusations of racism against management.

Mr McCammon subsequently brought a claim in the Employment Tribunal for victimisation and unfair dismissal, arguing that a poor process had been used in dismissing him and that he had been dismissed principally because he had made an allegation of racism against Mr Hesenthaler.

The Employment Tribunal found that Mr McCammon’s dismissal by Gillingham FC constituted victimisation – one of the principal reasons that the Tribunal came to this conclusion was that the letter of dismissal stated that one of the reasons for dismissing Mr McCammon was “very serious accusations of racism” – the Tribunal deemed it important that it had not been put to Mr McCammon (or found that) his allegations were false or in bad faith, and further decided that the club would have been in no position to find that the allegations of racism were false or in bad faith due to the fact that there had been no investigation whatsoever into the allegations by the club. The Tribunal found that Mr Scally had discounted Mr McCammon’s allegations of racism from the start as being without merit and therefore not worthy of investigation.

The Tribunal also upheld Mr McCammon’s claims for unfair dismissal and unlawfuld deduction from wages.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This is a classic case of how not to deal with allegations of racism (or any other form of discrimination) in the workplace, and how not to deal with a disciplinary hearing. Rather unbelievably, the letter of dismissal was reviewed by a solicitor before it was sent out, although this solicitor was not an employment law practitioner. One of the points that this case reinforces, however, is that in these forms of dispute specialist advice should be sought.”