A Simpson Millar Take On The Phil Neville Affair

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The Law Of… Selecting Appropriate Candidates

Controversy surrounding Phil Neville’s appointment to the role of manager of the England women’s national football team has hit the headlines over the last week. In the latest development, the FA said that they will not charge Neville for alleged sexist tweets dating back as far as 2012.

The Phil Neville storyline raises a number of potential interesting legal points. As media coverage on the issue is unlikely to go away anytime soon, our solicitors David Hession and Gregg Burrough comment on the FA’s approach to Neville’s appointment.

Phil Neville

Was Neville’s Appointment Unfair?

The FA has attracted a high level of criticism for failing to follow any sort of due process in the appointment of Phil Neville. Most readers would expect even the most basic form of recruitment process to include a formal written application followed by at least one interview. In contrast, Neville appears to have been handed the job on a plate following a process that can only be described as rudimentary at best.

In the FA’s defence, they could point to Neville’s strong playing and coaching credentials. It is worth noting that a number of potential candidates removed themselves from the process once the job became available. The FA’s argument is likely to be that Neville’s appointment was justified given he was the best available candidate at that time.  

How Does The FA’s Approach Sit With Current Legislation In The Area Of Recruitment?

The good news for employers is that legislation in the area of job recruitment can be fairly broad, giving employers a reasonably wide berth when it comes to recruitment. This is however subject to the important point warning that employers must not discriminate when recruiting employees. Employers should take note that equality legislation does extend to the area of recruitment. Recruitment to certain positions such as head teachers and senior members of the police force may also require a separate statutory process.

Setting aside any legalities, it is generally seen as best practice for employers to carry out a diligent process when recruiting its employees. There are a couple of reasons for this. Firstly, it places the employer in a strong position to defend any allegations of discrimination, however far-fetched these may be. By conducting a robust recruitment process, it follows that an employer is usually in a stronger position to justify its decision. As a second point, having a stringent recruitment process in place also avoids any charges further on down the line to suggest that a particular employee is not up to the job.

Within this context, the FA’s decision to appoint Neville without following any apparent due process may have been short-sighted, whilst falling short of an unlawful act.

Sexist Tweets – Should Neville Be Dismissed?

Following Neville’s appointment, his previous conduct on Twitter has caused further media controversy, focussing mainly on a number of sexist tweets posted in 2012. Neville has never sought to deny posting the tweets but has rather argued that they were out of character and not actually reflecting his views.

The FA’s approach in keeping Neville in his current role has attracted strong criticism. The FA has responded on the basis that it has carried out all the necessary background checks. Whilst the organisation may have acted lawfully in this regard and ticked all the necessary recruitment boxes, its failure to dismiss or even formally warn Neville of previous inappropriate behaviour has caused a lot of upset. Equal Rights campaigners have commented that the FA has not taken a strong enough approach, particularly in light of all the controversy surrounding the previous post-holder, Mark Sampson.

What Sort Of Legal Issues Could Arise In The Event Neville Is Dismissed By The FA?

Of course, it is open to Neville to resign from his post which is unlikely to result in a legal dispute. It may also be open to both sides to reach a financial settlement, allowing Neville to leave his position on mutually agreed terms. In the event Neville is dismissed due to ongoing media attention, his representatives are likely to argue that his previous actions fell outside the course of his current employment.

In addition, the fact that the FA is aware of Neville’s tweets and has warned him in relation to any future conduct being likely to compromise them in their ability to dismiss Neville for the same offence. Neville’s current length of service would preclude him from bringing an unfair dismissal claim. However, if the FA did move to terminate his contract then it would leave it open to Neville to take court action against the FA for breaching his contractual terms.

The Football Association’s Rules And Regulations For Off-Field Breaches

The FA has comprehensive rules and regulations on many areas surrounding and in football. These rules govern participants both on and off the field. The FA, as the governing body, presides over matters including, but not limited to Anti-Doping, Safeguarding, Inclusion and On Field/ Off Field breaches.

There has been, perhaps understandably, confusion on why Neville was not charged by the FA following his previous comments of 2011 -2012 that recently came to light. Further, the FA were forced to explain in a letter dated 24 January 2018 from their CEO, Martin Glenn, why candidates of black and ethnic minority were not in fact guaranteed an interview under the so-called, ‘Rooney Rule,’ a rule that has been incorporated from USA sport, originating in American Football.

Phil Neville’s twitter account was hastily deleted subsequent to his appointment as the manager of the national senior women’s team. The controversial comments relate to alleged domestic violence and alleged sexist comments. The FA, in its letter to the CEO of KICK IT OUT, Ms. Roisin Wood, highlighted it was aware of some but not all of his tweets prior to his appointment.

Ms. Wood went so far as to accuse the FA of double standards in appointing a man who has made both misogynistic and sexist posts. Crucially, Mr. Glenn highlighted that the tweets would not meet the threshold for an FA charge. Instead he would be provided with education on the FA’s regulatory functions and his responsibilities.

Has This Happened Before?

The confusion perhaps then is around why players and participants that have an active role in the game have been punished, legitimately, for comments made on social media regarding what could be perceived as similar tweets.

For example, on 23 September 2016, the FA issued a four-game suspension to a current footballer for misconduct in relation to his social media comments. The FA explained on their website that there were six alleged postings on his Twitter account that were abusive and/or insulting and/or improper and/or brought the game into disrepute contrary to Rule E3(1).

It was further alleged that these breaches of Rule E3(1) included a reference to sexual orientation and/or gender and/or colour and/or race contrary to Rule E3(2). The player admitted to three of the breaches, and denied the remaining three were in breach of FA Rules.

Following an Independent Regulatory Commission hearing on 22 September 2016, the remaining three breaches were found proven. The player was also fined £25,000, warned as to his future conduct and ordered to attend an FA education course.

Mr. Neville has not faced similar punishment. The FA has therefore been forced to explain why on the face of it, his tweets were not abusive, insulting, did not bring the game into disrepute and were not improper.

It will remain to be seen if further grievances, criticisms and protests from those within the game and out materialise. Former players and CEO of charities do provide much need protection and awareness on issues that the comments have raised. There are ongoing FA investigations on other ‘active participants’ whose social media profiles are subject to intense regulatory and media scrutiny.

We have highlighted the FA rules of governance with can be found here. Here other charges for breach of Rule E3 – Improper Conduct can be found, should you wish to compare the comments of Mr. Neville with other upheld charges.

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