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Richard Santy

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Constructive dismissal: The usual rules apply to football clubs


There is often a perception that football clubs don’t need to concern themselves with employment law. “Well, football is football isn’t it? Things are different aren’t they?” Falkirk Football Club recently learnt that the answer to that was, definitely not. Richard Santy, employment partner at Shoosmiths and head of its Sports Group, explains why football clubs need to take care when dealing with employee disputes in order to avoid finding themselves in front of an employment judge.

James McBride was employed by Falkirk Football Club from June 2007 until December 2009 when he resigned and claimed constructive, unfair dismissal.  
An Employment Tribunal rejected his claim but the Employment Appeal Tribunal (EAT) has recently overturned that decision and held that he was unfairly dismissed when responsibility for picking the under 19s team was removed from him.
Mr McBride was initially in charge of the reserve team but in June 2009 he was appointed as manager and head coach of the under 19s team.
In October 2009 Craig McPherson was appointed Director of the Youth Academy at the Club. On 6 December 2009 the under 19s team lost in the fourth round of the Scottish FA Youth Cup. The manager of Falkirk told Mr McPherson that from then on he wanted him, not Mr McBride, to pick the under 19s team and that Mr McPherson, rather than the manager himself, should deliver this news to Mr McBride.
Following this Mr McBride did eventually meet with the manager on 10 December and told him he couldn’t work under the new structure. He was then required to resign. Mr McBride confirmed that he was resigning because removing his right to pick the under 19s team without his consent rendered his position at the Club untenable.

Legal background
To claim constructive dismissal a claimant must show that their employer breached a fundamental term of their contract of employment and that they resigned in response to that breach, without unreasonable delay.
Commonly, in constructive dismissal cases, the employee claims that their employer has breached the term of mutual trust and confidence which is implied into all contracts of employment. 
The Employment Tribunal’s decision
The Tribunal considered that the lack of prior consultation with Mr McBride about the changes to his role was not a breach of his contract of employment because, that:
“… style of communication is not unusual within football, an autocratic style of management being the norm.”
In addition, the Tribunal found there had been an implied term in Mr McBride’s contract that the right to pick the team would change once the new Director of the Youth Academy was appointed.  
Consequently, the Tribunal rejected Mr McBride’s unfair dismissal claim.
The Employment Appeal Tribunal’s decision
The EAT held that because the Club had informed Mr McBride through someone who was not his line manager and without any consultation or explanation that his duties had been substantially altered, this did amount to a breach of the implied term of trust and confidence.
The EAT was clear that whether or not there had been a breach of the implied term of trust and confidence was a question which had to be considered objectively. It stated that an employer,
"… cannot pray in aid that he and others in his industry treat all employees badly and therefore treating an employee badly cannot amount to a breach of the duty to maintain trust and confidence.”
It also disagreed with the Tribunal’s finding that there was an implied term that Mr McBride would relinquish responsibility for picking the team once the new Academy Director was appointed.  
The EAT stressed that it will only be appropriate to imply a term where, considering the express terms of the contract and the facts and circumstances surrounding its formation, there is an implication that the parties actually intended the term in question to be part of the original contract. There was no proper evidence that this was the case here. 
The EAT stressed that it would have been open to the Club to seek to reach agreement over the variation of Mr McBride’s duties but they did not do so.
Football is a unique work environment with its own particular challenges, but this does not mean that an employment tribunal will not apply normal employment law principles when considering disputes.  
This is not the first time that a football club has fallen foul of the law by making unilateral decisions affecting a manager’s role, without proper consultation – Kevin Keegan was successful in his case for constructive dismissal against Newcastle United when a player who he did not want was brought in by the Club “over his head”.  
This case makes it clear that a lack of consultation can easily found a claim of breach of the implied term of trust and confidence and employment tribunals will judge this objectively: they will not allow clubs any leeway to circumvent the usual rules. Clubs should therefore try and avoid making management decisions without at least some attempt at consultation and agreement with the affected individuals, if they are to avoid costly tribunal claims.

Richard Santy, employment partner at Shoosmiths and head of its Sports Group

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