Multi-million pound salaries, glamour-model girlfriends, and celebrity lifestyles, all for three mornings’ training per week and a 90 minute kick-around on the weekend. It is no surprise that managers and footballers are thought by many (seemingly themselves also, on occasion) to live on their own planet with their own rules. When was the last time your manager gave you the Alex Ferguson ‘hairdryer’ treatment when you had a bad day at the office, for example?, or punched you in the stomach in a fit of rage after a poor set of financial results? or broke your cheekbone by throwing a plate of chicken wings at you? No, really.
But recently the Employment Appeal Tribunal issued a salutary reminder of how the football industry is in fact subject to just the same rules as “ordinary” industries, especially in the context of its employment laws.
James McBride was employed by Scottish club Falkirk FC as manager and head coach of the Under-19s team. Following a Cup defeat, he was told that he would no longer be responsible for picking the team. McBride resigned and brought a claim for constructive dismissal, including a claim that the Club had breached its duty of trust and confidence by the unforgiving manner in which those selection duties were taken away from him immediately and without consultation.
The Tribunal accepted that the communication was handled badly but distinguished football from other walks of life, saying that this “style of communication is not unusual within football, an autocratic style being the norm”. The EAT poured scorn on this reasoning. It ruled that an employer cannot rely on the fact that it and others in the industry traditionally treat all employees brusquely or peremptorily from time to time to argue that this cannot amount to a breach of the duty of trust and confidence. The Tribunal must assess objectively whether the action is likely to destroy or seriously damage the relation of trust and confidence between employer and employee, said the EAT. In this case it ruled that it did.
The issue of implied rights in football could be taken even further if Manchester City striker Emmanuel Adebayor carries out the threat recently reported in the Daily Telegraph to sue for constructive dismissal as a result of his exclusion from the Club’s pre-season US tour. Put in the football context that seems to move the goalposts from having a right to select the team to having a right to be selected, something one instinctively rejects as an idea. But outside football, if the employer arbitrarily left one of its highest paid executives in the office whilst the rest of the upper echelons flew to the US for its annual conference, who could be sure beyond argument that this would not breach the duty of trust and confidence?