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Practice made perfect


Appeal Judge finds youth team boss was right to resign and is due compensation after being undermined .

By Stephen Smith, Employment Lawyer, Glasgow Law Practice

IT’S a sport where players can find fortune and fame, but where their feelings or even their opinions count for very little against those of the manager.

From the famed “hairdryer” treatment of Sir Alex Ferguson to the tantrums of “The Special One” Jose Mourinho, the game has long tolerated managers who take a robust approach to workplace harmony, provided they achieve results on the park.

So when Falkirk FC faced a claim of constructive dismissal from youth coach who walked out after he felt undermined, they put forward evidence of the football’s historical approach to employment relations.

The club had brought in a new youth team coach, James McBride, who was told he would be picking the Under-19 team. The man who hired him, the club’s youth director Eddie May, assured him he would be allowed to run the team with no interference with him or anyone else.

But the same manager decided two years later, with the Under-19s head of the league, that Mr McBride should be stripped of responsibility for picking the team, and that should be a role passed to a new and untried youth director, Craig McPherson.

An Employment Tribunal in Glasgow heard evidence that the decision was made by May because he was angry that some of the Under-19s had failed to put away cones after training, and had been allowed to come in late to training, even though they had lost a match. The same day, May asked McPherson to tell Mr McBride he was being relieved of responsibility for picking the team, making tactical decisions, and giving team talks.

The next day, after being given the news, Mr McBride met with May, who told him he was not prepared to reconsider. Mr McBride then resigned, and brought a claim of constructive dismissal.

Opposing his claim, the football club brought witnesses from the club including Alex Smith, one of Scotland’s most experienced managers, who had been assistant to May at the time. The club accepted that Mr McBride should have been consulted about the changes to his role, but said that it was not unusual in football for decisions to be taken by “autocratic” managers without taking any account of the views of those affected.

The Employment Tribunal, having heard the club’s evidence, accepted their argument that this “style” of management was the norm in this particular industry, and Mr McBride had to accept this. The way he had been treated was “unfortunate in the extreme”, said the Tribunal, but did not amount to a breach of contract. The Tribunal also concluded that neither did the removal of Mr McBride’s duties amount to a breach of contract.

However, on both counts, the decision has been reversed by Lady Smith at the Employment Appeal Tribunal in Edinburgh, who has concluded that the club were entirely to blame for his resignation, and should pay him compensation for the wages he has lost since December 2009, with a further hearing to fix the final amount.

In finding for Mr McBride, Lady Smith, said employers should not be allowed to mount a defence that, in their particular sector, it is recognised as being acceptable for managers to behave in a poor manner.

“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.  Employers have a duty not, without reasonable and proper cause, to conduct themselves in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee,” she ruled.

She pointed out that the relationship of trust and confidence was mutual – and that the club would therefore have the right to dismiss the employee if he had behaved in a similar manner, but the club had put forward no evidence that he had.

The treatment of Mr McBride, by imposing the changes without prior notice, consultation or discussion indicated of “a wholesale lack of respect” for the coach and appeared to be “the product of anger on the part of Eddie May” provoked by things which had nothing to do with the fact that he selected the under 19’s team.

The judge also relied on another football case, brought by Kevin Keegan v Newcastle United FC, which was determined not by a court but by an arbitration panel under a QC, which found that the former England manager’s contract had been undermined when he was told he had no say in which players the club bought.

The McBride case is a warning to football clubs, and managers in particular, that no matter what pressures they face in trying to achieve success, there are limits to how they can treat those they deal with – at least where there is an employment contract in place.