While even David Beckham was pictured wearing such a scarf, a worker in a food and drink kiosk at Old Trafford was dismissed for doing the same on the grounds of an alleged breach of a 'strict uniform policy'.
Dismissal of an employee can raise questions about fairness and whether the decision could be challenged in an employment tribunal. However, it should be noted that the worker is likely to have been engaged by the company contracted to run the catering facilities at Old Trafford, rather than by Manchester United itself. The worker in question is also likely to have been providing his services via an agency or engaged only on a casual basis and so is unlikely to be able to pursue a claim for unfair dismissal.
That being said, there may be others working in operations in and around Old Trafford who might be able to pursue an unfair dismissal claim if they were subjected to the same treatment. This recent incident comes shortly after a steward at Old Trafford was dismissed for handing back an anti-Glazer banner to the fan who had brought it into the ground and had had it confiscated. A hard line seems to be being taken by Manchester United towards anyone showing allegiance or sympathy to the protests against the club's owners. This will inevitably lead people to conclude that the kiosk worker's dismissal came as a result of pressure from the club.
If we analyse the actual dismissal itself (if that is what it was), it is alleged that the reason for this was a breach of a strict uniform policy, on account of him wearing a scarf. It would be surprising if people engaged in such work were subject to such a strict uniform policy - particularly one that prevented them from wearing a scarf, especially given they may be working outside.
Dismissal for breach of a uniform policy can be within the range of reasonable responses for an employer. However, this is only likely to be the case where there has been a clear policy that has been communicated to the workforce and an employee has breached it on a number of occasions and been through a disciplinary process that has included a first written warning and final written warning. It is hard to imagine circumstances where breach of a uniform policy would reasonably lead to a summary dismissal.
There may be arguments that such a dismissal could be fair in circumstances where a third party places pressure on an employer to dismiss an employee on the grounds of some other substantial reason and there is existing case law to support this position (for example, Dobie vs Burns International Security Services (UK) Ltd 1984 EAT and Greenwood vs Whiteghyll Plastics Ltd 2007 EAT).
These cases confirm that when an employer is considering dismissing an employee on the basis of pressure from a third party, they must consider whether, and to what extent, there would be any injustice to the employee as a result of being dismissed. If they conclude that injustice would result, then they must consider any steps that could be taken to alleviate that injustice. In this scenario, if Manchester United is demanding that contractors remove from Old Trafford any worker who protests against the club's owners, then they may need to look at whether the worker could be assigned to work for another client. In the event that this was not possible, then a dismissal in these circumstances may well be found to be fair.
This incident just goes to show the potential negative publicity that can be attracted by dismissing a worker or employee, irrespective of their ability to pursue a complaint before an employment tribunal. It also acts as a reminder to employers that they need to be careful about how they enforce a uniform policy and that while a dismissal as a result of pressure from a third party could be potentially fair, they will need to consider alternatives to dismissal first.
James Pike is a senior solicitor at Davies Arnold Cooper
