Selection blues

In McBride v Falkirk Football Club, UKEATS/0058/10/BI, Mr McBride as coach and manager of the under-19s found his decision-making powers regarding team selection removed. Whilst influence over team selection is not unusual in football, or other sports, McBride’s resignation and complaint led to an interesting decision of the employment appeal tribunal sitting in Edinburgh.

Employment tribunal disputes are usually heavily fact specific; the smallest variation in a contract or an alleged remark can make all the difference. On McBride’s appointment, he was given assurances that he would be in charge of the under-19s team “without interference”. This was not qualified in any way. A few months later, a Director of Youth Academy was appointed, to whom McBride would report. In December 2009, McBride was advised by the new director (and not the club’s manager) that he might select the team. McBride was no longer heading the under-19s operation without interference or outside influence.

McBride handed in a resignation letter the next day and raised proceedings claiming constructive unfair dismissal. The tribunal considered that the club was not in repudiatory breach of contract, taking the view that the instruction to defer to the Director of Youth Academy on all matters including team selection, was not a breach. In its view, the real intention of the parties, at the time McBride was appointed, must have been that he would not have unfettered discretion to select if a director was appointed as everyone in the football world knew that such a post would carry the power to influence such matters. The lack of prior consultation or consideration for the manager, when appointing the director, was a “style of communication not unusual within football, an autocratic style being the norm”, and therefore not a breach of the employer’s obligation to maintain trust and confidence with their employee.

Same rules for all

The EAT considered that McBride’s contract clearly provided that he would have responsibility for team selection “without interference”. It was not possible, as a matter of law, to infer that he ought to have known this would change once a director was appointed above him. All the evidence pointed towards McBride believing he would remain in control notwithstanding such appointment. The tribunal had erred in law in finding that the instruction to McBride was not a change to his contractual terms, imposed by the club.

Separately, notwithstanding the autocratic management style sometimes found in sport, the fact that one of McBride’s key duties was removed without consultation by the person taking the duties, and not the club’s manager, was a breach of trust and confidence. Typical “bad” practice in an industry or sector cannot be used to defend a claim alleging breach of trust and confidence by the employer. Mutual trust and confidence had been destroyed in this case, as McBride clearly felt undermined and would necessarily feel that his autonomy and control over the players would be lost. Whether or not an employer’s behaviour is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer, will always be judged objectively. It was not open to the club to argue that as employers in football may have an autocratic approach, the rules were somehow different.

Get it in writing

The EAT noted the similarity of McBride’s case to Keegan v Newcastle United FC (FA arbitration), where another manager resigned feeling that his post had been undermined, when a player was brought into the club without his knowledge or consent though he was entitled to pick and choose who was to join or leave the playing staff.

The EAT was at pains to point out that this was not a case in which the club had agreed, at the time of McBride’s appointment, that his role and duties could change, whether with the appointment of a youth director or otherwise. For clubs, or any sports for that matter, where the matter of team selection is a hot topic not merely with supporters but within the organisation concerned, employers should endeavour to anticipate what is likely to be in their plans moving forward, and to retain some flexibility within the terms of their contracts with key personnel, to allow changes to be imposed. If there is a contractual power and structural or functional changes do require to be made, they can be made lawfully and without too great difficulty, either by agreement or imposition, following an appropriate measure of discussion with the personnel affected.