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Ruthless: Sir Alan Sugar, the boss on TV's The Apprentice, is used to firing underperforming candidates. Two recent departures from high-profile jobs include England rugby supremo Brian Ashton and BA's director of operations Gareth Kirkwood

If staff have to go, it's better to pay them off to avoid bad publicity

Joshua Rozenberg, Legal Analysis
22.04.08

Brian Ashton was reported to be consulting his lawyers after he was replaced last week as England's head coach. So was the Rugby Football Union.

What everybody wanted to know was whether Ashton's contract allowed the RFU to switch him to a job coaching the national academy. If not, he should now be entitled to a year's pay.

Employment lawyers contrast the coach's messy and drawn-out sacking with the blunt but effective approach of publicly quoted companies. Last week, for example, two senior executives at British Airways were made to carry the can for the disastrous launch of Terminal 5. Gareth Kirkwood, the airline's director of operations, and David Noyes, director of customer services, were out immediately.

How can that be, when 12 months' notice is normal practice at executive level in the absence of gross misconduct? The answer is that that executives are offered severance packages comparable to the awards they could expect to receive from a court or employment tribunal.

But this, in turn, can cause great resentment. Lower-paid staff face demotion or the sack if they fail to perform adequately. They cannot understand why senior executives should be treated any differently. Shareholders, too, do not like seeing failure rewarded.

In fact, says Rob Riley, an employment partner at Addleshaw Goddard, a speedy exit may well be in the shareholders' interest. If the executive can be persuaded to leave quietly, there may be little or no damage to the reputation of the company - or that of the executive.

Listed companies are required to tell the London Stock Exchange of any decision to dismiss a director as soon as possible, and generally within 24 hours - though the amount of compensation does not have to be disclosed. "A bad press and the aroma of failure associated with a 'sacking' do not help anyone," Riley explains. It is generally better for the brand if the executive can be said to have "retired" or left to pursue new challenges.

Nobody is likely to be taken in by such euphemisms. But adverse publicity can generally be restricted if the severance package is made conditional on the former executive's continuing silence.

As an employment lawyer, Riley aims for a resolution that leaves both sides happy. "A company and its shareholders may feel reluctant to remunerate a poorly-performing executive, but the prospect of a court case or tribunal claim and resulting press coverage may make a reasonable severance package the most attractive option for the company," he says.

"Managing reputation is really important in these situations. The director, too, will not want to be associated with the stigma of a public dismissal."

Why, though, would any company give senior executives such generous severance terms? Because, it appears, this is the only way in which they would have taken the job in the first place.

"When negotiating the contract, the executive would have resisted any attempt to water down the right to 12 months' notice from the company," says Riley.

The solicitor does come across attempts by companies to limit their exposure if an executive has to be dismissed, but these are unlikely to work in practice. The pay-off may be made in instalments, ending when the executive takes a new job, and he may be under a contractual obligation to look for a new position.

But someone who really has performed badly may not get a job within a year anyway. It can be difficult to tell whether the executive has been making every effort to get a new job. And employees' lawyers try to avoid restrictions like these.

So it looks as if large payouts will continue in the City. And where business leads, can rugby's bosses at the RFU be far behind?

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