How Not To Sack A Football Manager
Today’s article could be of particular interest to football fans especially the ones in the West Yorkshire region. It is in regards of course to the events that occurred towards the end of last month at Leeds United FC.
With only three hours to go until the transfer window closed on Friday 31st January whilst other managers in the Football league were frantically trying to push through last minute transfer deals Leeds united Manager Brian McDermott was practically being pushed out of the window himself. It was reported at the time that prospective new owner Massimo Cellino had instructed his Lawyers to relieve McDermott of his duties as manager with immediate effect. This may seem a regular occurrence to the followers of English football however the fact that he was then re-instated as manager less than 24 hours later is definitely not the usual protocol for the disposal of managers.
The farcical events explained above have actually highlighted some key employment issues in relation to the effective termination of employment and how employees can assert their right under their contracts of employment.
Amid all the confusion it came to light that Mr Cellino the person who ordered the sacking was not actually installed as official owner of Leeds United at the time. Therefore looking at this from a legal perspective it is relatively straight forward a dismissal notice issued by an individual who does not have the authority from the employer is not an effective dismissal. Mr Cellino may have intended to purchase Leeds united in the near future but he was not the current owner at the time so Brian McDermott was not effectively dismissed
Another point that could be considered in light of recent events is whether McDermott has a potential claim for constructive dismissal. Constructive dismissal occurs when an employee resigns and can demonstrate that they were entitled to do so because the employer had acted in repudiatory or fundamental breach of contract. Due to Mr Cellino not actually having anything to do with Leeds United it would seem that the club had not done anything wrong. After the incident occurred it was reported that a director of the club had contacted Mr McDermott the next day and clarified that he was still Leeds United’s manager and explained the situation to him.
There is the possibility that McDermott could potentially argue that the fact the club did not issue a statement confirming that Brian was still Leeds United manager until 24 hours after the incident happened could have possibly been seen as an unreasonable delay and therefore a repudiatory breach of his contract.
However Despite Mr McDermott clearly finding himself in an extremely difficult position it probably would not be advisable for him to resign and move down a constructive dismissal route the reason being even if there were potential grounds on which to do so (and from the facts this really isn’t clear) constructive dismissal claims are rarely straight forward.
To start with in order for any claim to be successful an employee needs to demonstrate that the employer’s conduct was not just unreasonable but was so unreasonable as to amount to a repudiatory breach of contract. An employee must also accept the employer’s breach of contract without delay (to avoid waiving the relevant breach) and resign in response to it. Furthermore if the employee resigns but is not then subsequently found to have been constructively dismissed he may inadvertently himself end up being in breach of contract by resigning before the expiry of his fixed-term.
Given these difficulties Mr McDermott would be better advised not to accept any possible breach for now and resign but to remain in his position. He would then hope to either continue as manager or would wait for Leeds to expressly dismiss him.
If Mr McDermott was constructively or even subsequently expressly dismissed he would be able to claim compensation for the remaining term of his contract. Mr McDermott is less than twelve months into a three year contract so a contractual claim could bring him compensation equal to two years’ salary and benefits (subject to his duty to mitigate his loss by seeking new work and subject to any other terms of the contract).
Mr McDermott would also potentially have a further claim for unfair dismissal. However compensation in relation to such claims is capped at £74200 and is only likely to compensate him for losses going beyond the term of his contract. As Mr McDermott will certainly hope to find work much sooner than that it is unlikely that any unfair dismissal angle would be worth seriously pursuing.
Finally it is worth flagging that in other professions successfully claiming constructive dismissal has an added benefit because if the employer has fundamentally breached the contract it frees the employee of any continuing obligations going forward for example in relation to post-termination restrictive covenants. However this is far less relevant in the football world.
In conclusion hopefully for both Brian McDermott and Leeds United this incident will blow over and Mr McDermott will be in charge of the club for years to come. However given that Massimo Cellino’s Italian club Cagliari have gone through 36 managers during Cellino’s 22 years of ownership Mr McDermott could be well advised to take steps to protect his position.
Author: Callum Morton