By Tony Attwood
On 9 August 2012, I published the article If Gillingham FC are guilty of racist behaviour, what will the FA do about the club?
It was an article which raised a number of comments from Gillingham supporters and regular readers of Untold at the time, all of which are of course still on the site, and below the original article linked to above.
I come back to the case now first because it intrigued me at the time, and second because there has now been a new development as the club itself, and their chairman Paul Scally, have each been fined £75,000 for “race victimisation” in relation to the original case.
What is interesting is at the time the employment tribunal that Barbados international player Mark McCammon was unfairly sacked by Gillingham FC after being racially victimised the club then said it was “staggered” by the finding of the tribunal and suggested it would appeal.
Now among the various odd things I have collected through the ages is a Fellowship from the Institute of Administration Management which may well not be your cup of tea, but which I mention to explain why I often focus on administrative matters in football. Things like fact that Gillingham claimed that it was agreed verbally that if Gillingham didn’t get promotion Mark McCammon’s salary would be cut by 15%. However due to a “clerical error” that clause was not only omitted from the contract – but no one noticed it was omitted from the contract, until the race dispute. Pesky stuff this admin but you’d be amazed how often such claims as “administrative error” are claimed when organisations find themselves in a bit of a pickle.
Anyway the heart of the matter was that as Mark McCammon’s solicitor said, “Mr McCammon raised a legitimate complaint of race discrimination, which the tribunal found that Mr Scally had discounted from the start as being without merit. Mr Scally did not bother to investigate the complaint and ultimately dismissed him because of it.
“The employment tribunal also make clear that the club’s witnesses not only colluded in the preparation of their witness statements leading to his dismissal but also colluded in the preparation of their evidence before the employment tribunal.”
My point was that if collusion by witnesses, failure to investigate an allegation of racism when raised, were true, then the FA and League should be acting.
As I said at the time, “Given the activities of the League and FA over John Terry, and other players, not to mention spectators who are involved in racist behaviour, it would be crazy – and a total slap in the face to Kick it Out – for the club to be allowed to continue playing in the League.”
My argument was not just about the need always to focus on racist acts, but also to look at the way the FA and League have always been happy to take actions against players and on occasion even directors, as individuals, but not against clubs. When there has been match fixing in the English league (most famously when Manchester United and Liverpool colluded in fixing a match so that Man U would stay up and Chelsea go down in 1915) no action at all was taken against the clubs.
As I say there were many comments on the original article and I would like to take one that I think is a clearly put summary. This comment looked at the charges against the player and what the tribunal felt.
1) Unfair dismissal – upheld as he was only given 1 day’s notice of his disciplinary hearing. Also as the club did not conduct a reasonable investigation into his claim for race discrimination to dismiss him for making the claim was unfair.
2) Race victimisation by dismissal – upheld because no investigation whatsover had been made into his racism claim as Mr Scally had discounted them from the start as being without merit and not worthy of investigation
3) Unauthorised deduction from wages – upheld as there was nothing in McCammon’s contract which provided for the reduction
4) Race victimisation by detriment – not upheld . The three claims here were that (a) he was treated unfairly because he made the race discrimination claim on the day of the argument with Hess, in that there was an unprovoked offer to terminate his contract, (b) threats were made to dock his wages for not turning up to training and (c) dock his wages for getting unauthorised independent medical treatment. The tribunal found that Scally had initiated negotiations to terminate McCammon’s contract before the racism claim was made and McCammon had taken an active part in these negotiations, the threat to dock wages was made before the race allegation and the medical treatment was unconnected.
So despite some media headlines along that lines of “GFC is racist” it seems that the issue was the lack of an investigation into the racism claim when it was made (and I’m sure we can all imagine Mr Scally telling him to go away and not be stupid !!)
The commentary by the Guardian at the time was that “the employment tribunal in Ashford ruled his departure was because of racial discrimination.
Gillingham appealed the decision by the employment tribunal in 2012 but the verdict was upheld by a judge in September 2013 and McCammon, was awarded £68,000.
Now and their chairman, Paul Scally, have each been fined £75,000 for “race victimisation” relating to the affair – meaning that rather unusually (if not for the first time) the club has been fined over such an affair.
An FA statement said: “The club and Mr Scally, who has also been ordered to attend an education programme, were found to be in breach of FA Rule E3(1) for failing to act in the best interests of the game and bringing the game into disrepute.”
Mr Scally says today on the club website ““In September of last year, the FA charged the Club and myself with bringing the game of football into disrepute. That charge arose out of the termination of Mark McCammon’s employment by the Club back in January 2011. A Regulatory Commission, appointed by the FA, considered the charges at a two day hearing in April of this year.
“I was informed yesterday morning, by the Club’s lawyers, that (among other sanctions) the FA Commission has decided to impose a £75,000 fine on the Club and a separate £75,000 fine on me personally. I am shocked, stunned and angered by this decision, as are my staff at the Club. The level of these sanctions is manifestly excessive, totally disproportionate and completely unjust. We have been given no reasoned explanation for the severity of the fines. The Club and I will be appealing against this decision and, if necessary, we will take the matter beyond the FA.
“It is important to emphasise that, in the written reasons for its decision, the Regulatory Commission states: ‘We see no evidence which supports a conclusion that there was any actual race discrimination against Mr McCammon.’
“Neither the Club nor I intend to make any further comment at this stage.”
So we have a general acceptance it seems that, as the BBC puts it today on its web site and as it stated at the time of the original hearing, “A tribunal found McCammon’s sacking was an act of racial victimisation.
But the owner says “this is not race discrimination”. True or false. Or put another way what is the difference between race discrimination and race victimisation?
The Equality Act 2010 is the place to turn for such information, (it is amazing where an interest in administration can come in handy – like knowing which Act to look at) for it makes it unlawful for an employer to discriminate against employees because of race, colour, nationality, ethnic or national origin. The Act makes it clear that there are four types of race discrimination.
- Direct discrimination: treating someone less favourably because of their actual or perceived race.
- Indirect discrimination: where there is a policy, practice or procedure which applies to all workers, but particularly disadvantages people of a particular race.
- Harassment: when unwanted conduct related to race has the purpose or effect of violating an individual’s dignity or creating an intimidating environment for that person
- Victimisation: unfair treatment of an employee who has made or supported a complaint about racial discrimination.
So, the argument from Mr Scully that neither he nor the club has been found guilty of race discrimination is actually not true, because under the 2010 Act race victimisation is actually one of the four forms of race discrimination. He was, as far as I can see, and as the Gillingham supporter I quoted above pointed out, found guilty of racial discrimination. A tiny point, but maybe important.
Now the act also says that “Employers should ensure they have policies in place which are designed to prevent discrimination in… (and here a list follows but there are two key points here
- discipline and grievances
- countering bullying and harassment.
If Gillingham did, presumably the chairman broke the club rules.
So from the information available to me (which of course as always might well be far less than the full facts of the case) the immediate defence put out by the club and its chairman is actually not right, and thus talk of appeals to and beyond the FA seem unlikely. But an appeal beyond the FA would be most interesting since I think it is a long time since any club or individual claimed in an English court that football rulings were in fact counter to the law of the land. The last case, I suspect was George Eastham, while he was trying to force his transfer to Arsenal.
We wait and see. But may I make one point in conclusion. It is of course possible that I have missed some vital element in the case, because I am relying on reports from elsewhere, not an inside knowledge of the case or the club. If that is so, it is always helpful to be corrected, but could I ask for such corrections to cite some sort of source for the information provided. That is always very helpful.