In no uncertain terms, his manager had the right to request that he take part yet Tevez refused to do so. What does this mean for his employment contract and what can other employers learn from it?
For the employers of Tevez, Manchester City Football Club, it looks like they have three options:
The first option is to dismiss for gross misconduct and then sue him for their loss of transfer fee. Whilst some may argue that there are grounds for a gross misconduct dismissal it seems less likely that a legal claim by the club for the transfer fee against Tevez would be successful, in which case they are losing out.
Alternatively, the club could fine him because he has not performed his contract but keep him in employment as a reserve until they can sell him at the next transfer window. They should accept the fact that this is probably going to be at a well reduced transfer fee in respect of his now well publicised difficulty to manage.
Finally they have the option to fine him, wait out the turbulent following period and then attempt to re-integrate him into the team and carry on as before.
Their first option of "Instant dismissal" or "summary dismissal" refers to the dismissal of an employee on the spot and without notice. The fact that it is without notice in some respects, places a higher burden on the employer who must be able to show that they have a valid reason that they can justify it. Generally this will be that the employee has not been able to do their job. In the above example it would be the fact that Tevez has not completed his contractual duties. In addition they must be deemed to have acted reasonably in the circumstances. For Manchester City this might include looking at alternatives based on the employee's reason for not complying with their contract. For the majority of employers, however, this might involve the availability of necessary training.
In order to dismiss an employee an employer needs to have investigated fully. If it turns out that the employer acted fairly but came to the wrong conclusion, this will not necessarily mean dismissal is unfair. So in following the prescribed procedures an employer might avoid liability.
The employer must be able to show that they have been consistent and have not made the dismissal for doing something that they normally let other employees do. In the above example had the club allowed similar behaviour from other players this might not help their case in a tribunal.
If you have done something which is against the rules of the company then an employee may be able to claim unfair dismissal if they can show that they were not made aware of that relevant company rule or policy by your employer. This places a further burden on the employer and again highlights the need for an employer to provide effective training and to have a system in place where such rules are easily available to all concerned.
There will be few opportunities for an employer to reasonably summarily dismiss, only in exceptional circumstances, notably where an employee has conducted himself in a way which is so bad that it could be categorised as "gross misconduct", will dismissal without notice be justified. In such justified circumstances, the Employment Rights Act 1996 provides a specific exemption from the requirement to give notice. To be safe the employer should be able to assert that he was entitled to summarily dismiss the employee. Where there is a dispute there must be a factual finding by a tribunal to that effect, that is, on the facts do the tribunal think that the act(s) of the employee constituted gross misconduct to warrant the dismissal without notice. Summary dismissal will be justified where the employee's actions show such a serious breach of the contract that further continuance of the relationship is impossible.
Although there is no statutory definition of 'reasonableness', tribunals will probably consider whether the employer had a genuine belief that the reason for dismissal was a potentially fair one and has reasonable grounds for that belief. That they carried out proper and reasonable investigations where appropriate and followed the relevant procedures would also be considered. Attention would also be given where the employer told the employee why they were being considered for dismissal and listened to their views in response. Other considerations would be the allowance of the employee to be accompanied at disciplinary/dismissal hearings and giving the employee a chance to appeal against the decision.
Whether or not the employer's actions were reasonable might also depend on whether the employee could be expected to understand the consequences of their behaviour. Again training and availability of the rules and regulations pertaining to their employment would help the employer in this respect.
It has been known for employment tribunals to occasionally rule that a summary dismissal was fair because the circumstances made an investigation unnecessary, e.g. where the employee engaged in serious misconduct in front of witnesses and there was no reasonable explanation for their actions or mitigating circumstances. In practice, however, it is likely that a tribunal would rule a summary dismissal procedurally unfair and for prudence it is not recommended. The alternative here would be to suspend the employee on full pay and then investigate the circumstances. On this basis the employee would have little to fall back on in terms of litigation. Even if you feel that you have no choice but to instantly dismiss an employee, you must make every attempt to follow a fair procedure as you would do for any other disciplinary matter.
Moving back to the example above, of issue for Manchester City is the £52 million price they paid for Tevez and this is definitely going to play a part in what actions his employers might take. For other employers a congruent example might be deciding whether or not to dismiss an employee in whom you have invested a great deal of training and as such money and time. Whatever the case may be, in considering a summary dismissal an employer should not neglect to follow the procedures they would for any other dismissal, £52 million or not.