Can you “temporarily step down” from an employment role? A view on Craig Bellamy’s positionKatherine Apps
On 3 January 2019 news broke that Craig Bellamy, Cardiff City’s under 18s coach had “temporarily removed” himself from his “coaching position” in order to cooperate with the club’s inquiry into allegations of bullying and xenophobia. He “categorically refute[s]” the allegations and said that he “fully expect[s] to return to [his] coaching role.” He also stated that he had taken legal advice.1
It is possible to “temporarily resign” from a position?
Assuming that Craig Bellamy is contracted under a contract of employment with Cardiff City (which would be the usual arrangement) it has long been established that a resignation, once given, cannot be withdrawn without the agreement of the other party (Riordan v the War Office2). In that case an employee resigned then sought to withdraw the resignation one hour later. His commanding officer refused to let him withdraw it. His claim for wrongful dismissal was dismissed on the basis that he had terminated his own employment.
Does Craig Bellamy know about Riordan?
As Craig Bellamy specifically says that he has sought legal advice, and the statement makes no mention of resignation, it is likely that he is aware of this principle (although, admittedly, unless especially interested he may not have read the judgment of Diplock J in full).
What happens if a person’s notice is ambiguous as to whether it is a resignation or not?
This situation was recently considered by the Employment Appeal Tribunal in East Kent Hospitals University Foundation Trust v Levy3. An employee who already worked for the trust had been offered a new role in a different department. After an altercation with an employee in her current department she had handed in a letter stating “please accept one month’s notice from the above date.” The employer accepted her “notice of resignation” but did not fill out a staff termination form (which would not have been necessary had the notice related only to the proposed internal move). She later tried to retract the notice. When this was refused she brought a claim for constructive unfair dismissal and direct unfair dismissal. Both the Employment Tribunal and Employment Appeal Tribunal found her notice to have been ambiguous. It was not clear whether she was refusing the transfer of departments or resigning her employment. As it was not unambiguous it could not be a resignation. Her claim succeeded.
Does Craig Bellamy know about Levy?
This again is, of course, entirely speculative, but the references to intending to return to his role in future suggests that he is not intending to sever the entire employment relationship itself by stepping down from his coaching role.
What options short of resignation are there?
What often happens when an employer receives allegations relating to safeguarding concerns or bullying is that the employee is suspended (on full pay) pending the investigation. Such suspension is often framed as a “neutral” act, although the Courts and Tribunals are increasingly recognising that suspension often does not feel at all neutral in practice (see Agoreyo v London Borough of Lambeth4).
Therefore, what may occur is that an employee, who has been fighting a suspension relents and agrees to not perform their duties during an investigation. This would usually result in them continuing to receive their salary while on paid suspension.
Can a suspension be unpaid?
Failing to pay wages when due is a classic example of a fundamental breach of an employment contract, which would entitle the employee to resign and claim constructive dismissal. The payment of wages for work is one of the hallmarks of the employment relationship itself. Unpaid suspensions are, therefore, rare.
In theory, the parties could potentially agree terms for an interim settlement agreement which provided for no wages to be paid, however, this would be complex and would face considerable hurdles to legal effectiveness. Employment law requires a yes/ no answer to the question of whether someone is an employee (or a worker). A person cannot exist in a status of “suspended” employment status. They are either an employee (or worker), in which case they have at least an entitlement under the National Minimum Wage Act 1998 to payment of that rate within the pay reference period; or their employment is terminated, in which case they have a short limitation period from their date of termination to bring proceedings in the Employment Tribunal (although up to 6 years in the civil courts). If the contract has come to an end, there cannot be any future expectation of work, unless there is a separate contract which entitles them to reengagement on particular terms.
What is certain is that Craig Bellamy cannot, as a matter of English law, have resigned his employment temporarily. The statement is carefully drafted, and it is clear that he is being advised. What is equally clear is that this is unlikely to be the last that is heard of this matter as the underlying allegations (which are denied) are under investigation by the club.
Such investigations are becoming increasingly common across the sporting world as safeguarding concerns are more frequently being both reported and taken seriously (see as just one more recent example the investigation into claims of bulling at Aston Villa5). Clubs and sporting bodies are coming under increasing pressure to show that something is being done, and done rapidly. There can sometimes be a public interest in naming the person under investigation so as to encourage others who have been affected, but are feeling nervous about coming forward, to do so. However, when this is done the individual accused is in an especially weak position while an investigation is ongoing. They may have been named publicly and their professional and public standing is vastly reduced. Even if later cleared reputations may never recover. It is not surprising that they may wish to be seen to be the party taking the initiative. Doing this in practice, however, is fraught with difficulty.
Note: the author is not instructed in relation to the allegations made against Craig Bellamy and the views expressed are entirely her own.
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- Tags: Athlete Welfare | Employment | Employment Tribunal | Football | National Minimum Wage Act 1998 | Wales
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About the Author
Katherine Apps, 39 Essex Chambers
Katherine is a barrister specialising in sports law, employment law, EU law, public and regulatory law at 39 Essex Chambers. She is a member of 39 Essex Sports law group and is also a member of Sports Resolutions National Safeguarding Panel and Sports Resolutions Integrity and Discipline, Discrimination and Commercial Disputes Panels. She has a particular interest in safeguarding in sport, anti-discrimination, governance issues and international and EU law issues in sporting disputes.