THE HONOURABLE LADY SMITH
Introduction
1.
James McBride is a football coach. He was employed by Falkirk Football
Club from June 2007 until 10 December 2009, when he resigned. By judgment
registered on 2 August 2010, an Employment Tribunal sitting at Glasgow, Employment Judge Ms E Bell, dismissed his claim for unfair constructive
dismissal. This is the employee’s appeal against that judgment.
2.
For convenience, we will continue referring to parties as Claimant and
Respondent.
3.
The Claimant was represented by Ms A Jones, solicitor, before the
Tribunal and before us. The Respondent was represented by Mrs M Lang,
solicitor, before the Tribunal and by Mr J Carruthers,
solicitor-advocate, before us.
Background
4.
The Tribunal’s findings in fact show that the relevant background is as
follows.
5.
The Claimant was initially employed, in 2007, as the Respondent’s first
team coach and assistant to the coach of the reserve team. The Respondent also
had an under 19 team, the manager of which was, at that time, Eddie May. Its
players are engaged by the Respondent on a full time basis. The under 19’s
team was important; its primary purpose was to develop players in order to
enable them to move through to the first team squad. Eddie May selected the
under 19’s team throughout the period that he was its manager.
6.
Eddie May was also, until the end of the 2008/9 season, Director of the Respondent’s
Youth Academy. It was not clear whether Eddie May’s selection of the under
19’s team arose from his role as under 19’s manager or from his Youth Academy role. Either could have been the source of his having that responsibility.
7.
Responsibility for selection of the under 19’s team also, of necessity,
involved deciding on set pieces, conducting the team talks before, during and
after matches, and deciding on team formation.
8.
The Claimant had previously worked on a part time basis, for Celtic
Football Club Youth Academy (from 2002 to 2007), in a coaching role and had
involvement with them when Tommy Burns was in charge of the youth coaching
arrangements; the Claimant worked to his instructions. The Claimant had also
had a part time position with the Hibernian Football Club Youth Academy (from 2000 to 2002). The players he was involved with in these part time posts were a
younger age group (10 – 13year olds) than the under 19’s team. Otherwise,
between 1980 and 2007, he worked full time as a science technician at Holy Cross High School in Hamilton.
9.
At Christmas 2008, the Claimant was also put in charge of the reserve
team. At the end of the 2008/9 season, Eddie May became overall manager of the
Respondent and shortly thereafter – in about June 2009 - he made two decisions
that were of particular significance for the Claimant. One was that he
disbanded the reserve team. The other was that he appointed the Claimant to be
manager/head coach of the under 19’s team. Eddie May assured the Claimant, at
the time of his appointment, that he would be in charge of the under 19’s team,
without interference (see: Tribunal’s judgment at paragraphs 4.12). His role
was to include daily training, coaching, development and picking the team for
matches. Nothing was said to the Claimant to suggest that that would change at
some future date. Nothing was said to him about whether that would change if
or when the Respondent appointed a Director of their Youth Academy. The Claimant gave no evidence about whether or not he had any prior knowledge or
understanding of what impact, if any, the appointment of such a Director would
have on his role; the Tribunal notes, at paragraph 5.2:
“Unfortunately, the claimant was not cross-examined specifically
on this point, and therefore we did not have the benefit of hearing what it was
the claimant had to say about that.”
10.
On the contrary, as the Tribunal continue:
“..the claimant’s evidence was that his expectation was that he
was entitled to remain in control of the under 19’s team, and that that was an
undertaking which had been given to him at the time of his appointment and one
which he expected to continue to apply.”
11.
The under 19’s team did well; by the date of the Claimant’s resignation,
it was at the top of the relevant league table.
12.
The Respondent, in common with a number of other Scottish football
clubs, also had a Youth Academy. Prior to his becoming manager of the Respondent,
Eddie May had been its Director, a role which he vacated upon his managerial
appointment. When the Claimant was appointed to the role of manager/head coach
of the under 19’s team, the post of Director of the Youth Academy was vacant.
13.
In October 2009, the Respondent appointed Craig McPherson as Director of
the Youth Academy. He had no prior experience of working within the Youth Academy of a football club. He was advised to begin by gaining an overview of the
whole Academy. From the time of his appointment he normally attended the under
19’s training sessions which were led by the Claimant and another coach, Mr
Bullen. Mr McPherson needed to get to know the under 19’s team to enable him
to fulfil his development role.
14.
On 6 December 2009, the under 19’s lost a match against Hibernian in the
fourth round of the Scottish FA Youth Cup. On 9 December 2009, Eddie May was
extremely angry because the Claimant was thought to have given permission to
some of the under 19 players to attend at the Academy late that day and because
under 19’s players had left cones and mannequins out on the ground when they
should have cleared them away. The Claimant was off that day and Eddie May’s
anger was reported to him by Mr Bullen, by telephone.
15.
On 9 December 2009, Eddie May contacted Craig McPherson, told him that
from then on he wanted him, not the Claimant, to pick the under 19’s team and
asked Craig McPherson to tell the Claimant that that was to happen.
16.
The Respondent had always intended that at some point the Academy
Director would take over the role of picking the under 19 team but the timing
of the instruction and the manner of its communication “may have been prompted
by Mr May’s irritation” (paragraph 4.22 of the Tribunal’s judgment). On
the findings in fact, that intention was never communicated to the Claimant
prior to 10 December 2009; in particular, it was not communicated to the Claimant
at the time of his appointment to the under 19’s team.
17.
The effect on the Claimant’s role of Mr McPherson taking over selection
of the under 19’s team was that Mr McPherson would also have ultimate
responsibility for deciding on set pieces, that he would take responsibility
for the team talks before, during and after the matches, and that he would have
primary responsibility for shaping the team.
18.
On 10 December 2009, Mr McPherson told the Claimant that Mr May now
wanted him to pick the under 19’s team. The Claimant was very unhappy about it.
He had a good relationship with Mr McPherson, though, and did not take
exception to him being the bearer of these bad tidings. He carried out his
training duties, and met with Eddie May at the end of the day. Mr May was not
prepared to reconsider his decision. The Claimant responded “that he could not
work under those circumstances.” Thereafter, when the Claimant was making his
way to his car, Mr McPherson asked him if he would return to see Alex Smith (an
assistant coach). He did so. Alex Smith handed him a blank piece of notepaper
with the Respondent’s logo at the head of it and asked the Claimant to write a
letter of resignation. The Claimant wrote:
“I James McBride as of today Thursday 10th December
2009 hereby resign my post of U19 manager of Falkirk FC.”
signed the document, and left it with Alex Smith.
19.
By letter addressed to the Respondent’s managing director, dated 16
December 2009, the Claimant wrote:
“Dear George
On Thursday morning 10th December 2009 I was told by
Craig McPherson that he had been instructed by Eddie May to tell me that as of
now I would no longer be picking the Under 19’s team (which I had been doing
since August) on match days and the responsibility for this task would change
to Craig himself.
By removing my right to choose the team and to do so verbally
and without my consent is a Unilateral Variation of Contract. By doing this he
is also undermining my position as the Under 19’s Manager. This goes to the
root of the contract and therefore breaches the contract. I believe this
action rendered my position untenable and unfortunately I had no alternative
but to resign.
I regard this as constructive dismissal and as no issues were
ever raised regarding my performance/conduct, I automatically deem it to be
Unfair.
I seek to resolve this situation amicably, and seek compensation
for loss of earnings (gross) and other benefits for the remainder of my
contract, due to expire at the end of June 2010. I would also appreciate a
reference that would be helpful in my quest to find future employment.
If I do not hear from you within 2 weeks, I will take legal
advice with a view to raising proceedings for Breach of Contract and/or
constructive and unfair dismissal.
If possible could I have a copy of any internal dispute
resolution procedure or mechanism?”
The Tribunal’s Judgment
20.
The Tribunal found that the Respondent’s instruction that the Claimant
was no longer to be responsible for selection of the under 19’s team was not a
breach of contract. They concluded that the real intention of the parties was
not as stated by Eddie May when the Claimant was appointed; they implied a term
that:
“…whilst the claimant would initially be permitted to select the
under 19’s team …that position would necessarily change once the Academy Director
was appointed and the team selection issue would be one over which the Academy
Director would have the final say… …..once [he was] in place and properly
fulfilling the role.” (see: Tribunal’s
judgment at p.17 paragraph 7.5)
21.
That, state the Tribunal, was the “real intention” of the parties at the
time of the conclusion of the contract in terms of which the Claimant was
appointed to the under 19’s team. The Tribunal set out a list of their reasons
for so concluding from paragraph 7.5.1 to 7.5.11:
“7.5.1 The role of (first team) Manager and Academy Director
represent the two ‘kingpins’ in football clubs.
7.5.2 The respondent was recruiting to the role of Academy
Director at the time of the claimant’s appointment as under 19’s manager.
7.5.3 The claimant knew the well established practice that the
Manager could have the final say in relation to team selection at any level.
7.5.4 The Academy Director was responsible for development of
players to the first team and he would be judged on that success or otherwise.
7.5.5 The under 19’s team was the feeder team to the first team
and the players within that team were at a vital stage of development where
they would be undergoing personal development plans.
7.5.6 The Academy Director required to have a say in selecting
the under 19’s team because he was responsible ultimately for player
development to the first team, he could dictate whether a player from the under
17’s team should be selected to play in the under 19’s team thereby ‘bumping’
an under 19 player and creating a knock on selection issue.
7.5.7 The role of under 19’s manager and Academy Director were
to be roles carried out by two different individuals contrary to the position
adopted when Eddie May fulfilled both roles.
7.5.8 When Eddie May fulfilled both roles, he had the final say
in the under 19’s team selection.
7.5.9 The claimant has worked in the Celtic Youth Academy headed
up by Tommy Burns and accepted that Tommy Burns had had the final say on all
matters in that role.
7.5.10 The under 19’s team was effectively self selecting
because of its number at the time of the claimant’s appointment and where
players had to be sourced from the under 17 team, that was a matter
subject to the agreement of others and not within the claimant’s sphere of
control.
7.5.11 The role of under 19’s manager was one part of the
coaching framework within the Academy made up of coaches at every age level of
development, and the Academy Director required to ensure that development was
being achieved appropriately at each level.”
22.
Alex Smith, assistant coach, had given evidence that the Academy
Director would have had the power to select any of the teams, including the
under 19’s team and that that was a power akin to the manager’s power, that the
manager and Academy Director were the “two kingpins” (a phrase which, we
observe, arose from a leading question posed by one of the lay members), that
everyone in the football world would have known that and that he expected that
the Claimant would have known that. That evidence appears to have been
strongly influential in the Tribunal’s reasoning.
23.
The Tribunal also pray in aid the factors set out at paragraph 5.2
namely that the Claimant himself had been involved in youth academies before
and at Celtic the Youth Academy Director had the final say on everything, that
it was obvious that by the time players reached the under 19 team the focus was
on their individual development, that the Academy Director had to have a direct
input into that which would mean his selecting the team and that they believed
that the Claimant did know that the Academy Director “would wish to have a
direct hand in the strategy for matches and engagement with individual players”
contrary to the Claimant’s evidence that that was not his belief. The Tribunal
do not explain why they reject the Claimant’s evidence on that matter
notwithstanding its apparent importance to their ultimate conclusion.
24.
The Tribunal considered whether the lack of prior consultation with the Claimant
amounted to a breach of the implied term of trust and confidence but decided
that it did not because:
“… we heard evidence that this style of communication is not
unusual within football, an autocratic style of management being the norm.” (paragraph 7.8)
and the Claimant
“did not take particular exception to Mr McPherson being the
messenger…” (paragraph 7.8)
25.
The Tribunal add:
“Having said that we do not find that this was a repudiatory
breach we must record here our view that the way in which this communication
was handled was unfortunate in the extreme and Mr May ought to have met with
the claimant himself and sought his views on how the arrangement was going to
work in practice.”
26.
At paragraph 7.9, the Tribunal conclude that even if they had found
there to have been a repudiatory breach of the implied term of trust and
confidence, the Claimant’s case would still have failed because he did not
leave in response to the breach:
“…he said to Mr May that he could not work ‘in those
circumstances’ namely circumstances where Mr McPherson retained the final
say on team selection. We find that that was the effective cause of the
claimant’s resignation and that the lack of consultation was not a factor in
the claimant resigning.”
27.
The context for that conclusion was, however, that the Claimant did not
object to Mr McPherson being the messenger of the bad news; that,
according to the Tribunal’s reasoning amounted to the Claimant not minding that
he was not consulted. Further, in so concluding, the Tribunal had no regard to
the terms of the Claimant’s letter of 16 December.
The Appeal
28.
For the Claimant, Ms Jones had two principal submissions.
29.
First, the Tribunal had erred in law in their conclusion as to the terms
of the contract between the Claimant and Respondent; as a matter of law, there
was no proper basis on which the term referred to could be implied. Whilst the
Tribunal correctly noted that, to be implied, an alleged term must be both
obvious and precise, they failed to take account of their own findings in fact
about what was actually said at the time the contract was formed and, further,
determined on an implied term that was not precise at all. The Tribunal had
made a clear finding that when the Claimant was appointed to his role with the
under 19’s team, he was told that he would be left to do his job without
interference. It was entirely contradictory of that finding for the Tribunal
to conclude that it was implied that there could be interference at a future
date by Mr May or someone who had not even been appointed as at the date of the
contract.
30.
So far as the Tribunal’s reliance on the Claimant’s previous experience
with the Celtic and Hibernian Youth Academies was concerned, the Claimant had
worked for them on a different part-time basis (2 nights per week and a younger
age group of children who were not full time players), there was no evidence as
to how either of those Youth Academies were operated by the clubs concerned, no
evidence about the respective club structures, and no evidence about how their
under 19’s teams were run.
31.
Further, in the Claimant’s ET1, he had set out his case as being that he
had become manager of the under 19 team, that he had carried out the duties of
that role and, on 10 December 2009, was told that he “would no longer be
permitted to pick the team for games played by the Under 19 team.” Nowhere in
the ET3 was it suggested that the parties’ contract was that the Claimant would
only be allowed to pick the team for a limited period or that when appointed,
the Academy Director would take over that role. It was never suggested to the Claimant
in cross examination that he was aware that there would come a time when he was
not allowed to pick the team; on the contrary, at paragraph 5.2 the Tribunal
found that the Claimant’s understanding was that he had been given an
undertaking that he would remain in control. The Tribunal had accepted and
relied on Alex Smith’s evidence. An essential issue of fairness arose. She
referred to and relied on Netintelligence v McNaught UKEATS/57/08
and the observations at paragraph 49 that the credibility and reliability
of a witness’ evidence is liable to be called into question if the points at
issue were not put to an earlier witness who had relevant evidence to give
regarding them. That should have been their approach to Alex Smith’s
evidence, given the failure to cross examine. Further, he was not even in post
at the time the Claimant was appointed to the under 19’s team so how was he in
a position to say anything about what would have been the Claimant’s
understanding at that time?
32.
Overall, the Tribunal seemed to have seized on Alex Smith’s evidence as
a basis for their finding that the Claimant ought to have known all along that
his role would change at some future date and they lost sight of the one
relevant question, namely, what was agreed between the Claimant and Mr May,
when he took on the under 19’s role. At their highest, the Tribunal’s findings
amounted to what they considered the Claimant ought to have known but that was
not the point – that avenue of enquiry was shown to have arisen from the Tribunal’s
questioning of witnesses.
33.
The Tribunal had also failed to take account of Mr McPherson’s evidence
(at paragraph 5.2) that he did not think that the Claimant would have
known that it was only a matter of time before the Academy Director would take
over selection of the under 19 team, giving an illogical reason for doing so,
namely that he had not had experience of working in youth academies in football
clubs in the past. On the contrary, if there had been a prior understanding
between the Claimant and the Respondent to that effect, it would have been
reasonable to expect Mr McPherson to have been told about it but he was not.
34.
Further, the finding that it was not clear whether the basis for Eddie
May selecting the under 19 team was his under 19 managerial role or his Youth
Academy role was difficult to reconcile with the finding that the Claimant
ought to have known that once an Academy Director was appointed, he should have
realised that his role would change.
35.
Ms Jones submitted that the change to the Claimant’s duties that was
imposed on him was obviously a matter of substance; it was a fundamental aspect
of his role. She referred to the decision of the arbitration tribunal chaired
by Philip Havers QC in the case of Kevin Keegan v Newcastle
United Football Club where the manager resigned because a term of his
contract whereby he was to have the final say on transfers into the club, was
breached when a player was transferred in without his consent and it was held
that he was constructively dismissed.
36.
Ms Jones’ second submission was that the Tribunal erred in law in
failing to find that there was no breach of the mutual duty of trust and
confidence and that the Claimant resigned in response to that breach; on the
facts found, it was plain that there had been such a breach and that the Claimant
had resigned in response to it. For the basis of implication of the trust and
confidence term, she referred to Morrow v Safeway Stores
UKEAT/0275/00. She referred to paragraph 7.8 of the Tribunal’s judgment and
submitted that it demonstrated an illogical fallacy – their findings amounted
to saying that employees in football are often treated badly, the Claimant was
treated badly, therefore it was not unfair to treat the Claimant badly. It was
also fundamentally wrong. The standard of conduct to be expected of an
employer in terms of the duty was an objective one and was not confined to the
particular industry in question. In short, to inform the Claimant through
someone who was not his line manager, without consultation or explanation, that
his duties were to be substantially altered, plainly amounted to a breach of
the duty of trust and confidence.
37.
As regards the Tribunal’s finding that the Claimant did not resign in response
to the Respondent’s conduct, because he said he could not work ‘in those
circumstances’, the circumstance in question were that Mr McPherson would
select the team and the consequences to which we have referred would follow,
all without discussion or consultation. It was plain that the Claimant’s
resignation was in response to the whole way he was treated.
38.
Ms Jones’ motion was that we should substitute a finding of unfair
constructive dismissal and remit the case to a freshly constituted tribunal to
determine compensation.
39.
For the Respondent, Mr Carruthers submitted that we should refuse the
appeal. It did not “jump out at you” that the Tribunal had erred – a
submission he made under reference to the well known passage at paragraph 94 of
Yeboah v Crofton [2002] EWCA Civ 794. The Claimant was
aware that the Respondent was looking for an Academy Director. Once that
director was in post and comfortable with his task, there would be a change.
As to when that would be, Mr May had given evidence that, in his case, it took
him five years to become comfortable with the job, but it would depend on the
particular individual. The Claimant was aware of the set-up at the Respondent
club. He was aware of the Academy and how it functioned. He had intimate knowledge
of how football and football clubs worked in Scotland. The Tribunal could thus
infer that he knew what the function of an Academy Director was. Mr May had
given evidence (as per the note of evidence which was before us) that the
Academy Director’s job description had to say that he would be in overall
charge of the Academy strategy including overall responsibility for player
development. The point was that the Claimant would have had knowledge of how
football academies work.
40.
Mr Carruthers relied also on the part of the note of evidence before us
relating to Mr McPherson’s evidence in chief. In particular, he referred
to that part which described the process of getting to know the teams, starting
with the younger boys first, and then what happened when Eddie May contacted
him in December 2009:
“..the manager phoned me one day …and said from now on I want
you picking the under 19’s team which I hadn’t been doing until then. I think
he felt…. my responsibility as Academy Director to do that as he had done in
his role. I think Eddie May has the final say. Whatever reasons he had I
think he felt that it was my responsibility to have the final say. He said
that I want you to have the final say on the team selection – I will pick the
team.”
41.
Regarding the failure to cross examine the Claimant as to what his
understanding was as to the likely impact on his role of the appointment of the
Academy Director, Mr Carruthers surprisingly suggested that the Claimant’s
agent could have made a motion for recall of the Claimant. He did not seem to
accept that if there was to have been any motion for recall, it ought to have
been at the instance of the Respondent’s agent, to carry out the missing cross
examination. He accepted that the point was not foreshadowed in the ET3 but
his answer to that was that tribunal cases evolve.
42.
Regarding the cause of the Claimant’s resignation, he submitted that the
Claimant did not object to the fact that Mr McPherson delivered the message; it
was the message itself that he objected to.
43.
Regarding the Tribunal’s reference to style of communication, Mr
Carruthers accepted that there was what he referred to as a slightly autocratic
style of management but it was not, he said, the problem.
44.
He submitted that the Tribunal’s judgment was clear, coherent and
reasoned and not perverse.
Discussion and Decision
45.
We have no hesitation in upholding this appeal, for the reasons so
clearly submitted by Ms Jones.
46.
We begin by observing that the Tribunal determined this case on the
basis of a contractual issue that was never raised in the ET3 and had not been
put to the Claimant in cross examination. Accordingly, the Claimant had had no
prior notice of the argument and had no opportunity to comment on it in
evidence. In these circumstances, a clear issue of fair notice arose – which
the Tribunal did not address at all - as did the issue of whether or not the Respondent’s
evidence in support of an implied term argument could be accepted as credible
and reliable. We were, frankly, not impressed by Mr Carruthers’ response that
tribunal cases “evolve” which seemed to suggest a lesser degree of fairness
might apply because this was a tribunal litigation.
47.
As explained at paragraph 49 of the judgment in the case of Netintelligence
v McNaught, if a tribunal decides, notwithstanding the lack of notice
and lack of cross examination on the point at issue, to accept the other
party’s evidence on it, we would expect clear justification for doing so to be
advanced. Mr Carruthers did not address this point beyond asserting that the Claimant
had intimate knowledge of how football works in Scotland. He did not, in
particular, point to any part of the Tribunal’s judgment where such
justification can be found and we cannot identify any such passage. Whilst the
Tribunal set out a line of reasoning immediately following their observations
at paragraph 5.2 about the lack of cross examination of the Claimant being
unfortunate, we do not consider that that set of reasons (reflected in the list
in paragraph 7.5 which we set out above) fulfils that function. Nowhere do
they provide, for instance, any reason for concluding that nothing that the Claimant
(a witness who they appear to have found to be generally credible in giving his
evidence – see paragraph 5.1) might have said in answer to questioning on the
issue could have affected their conclusions. To put it another way, nowhere do
the Tribunal appear to have asked themselves what might have been their
conclusion if the Claimant had denied that he expected to have his autonomy
withdrawn or, indeed, that all clubs in Scotland operated in the same way, with
Youth Academy Directors selecting the under 19 teams.
48.
The Tribunal determined that the Respondent were not in breach of
contract by implying the term to which we have referred. They had, however, no
proper basis in their findings in fact for implying a term that the Claimant
would relinquish responsibility for selecting the under 19 team (and all those
responsibilities which the Tribunal found were inextricably associated with it)
once the new Academy Director was in place and properly fulfilling the role.
Quite apart from such a term being too imprecise to be enforceable, nothing was
said to that effect when the Claimant was appointed to the under 19 team. On
the contrary, on the Tribunal’s findings, one of the terms on which the Claimant
was appointed by Eddie May, was that he was to be in control of the under 19’s
team without interference . Nothing was said about variation of that term in
the future and nothing was said to qualify it in any way; if that had been
Eddie May and the Respondent’s intention, it would have been a simple matter to
do so at the time of appointment.
49.
That is not to say that it would not have been open to the Respondent to
seek to reach a subsequent agreement with the Claimant to vary his contract so
as to relinquish autonomy to their Youth Academy Director once appointed. They
could have but did not do so.
50.
Further, even if it was legitimate for the Tribunal to reach the
conclusions that they did about what the Claimant ought to have known, they did
so by way of drawing inferences which did not lead to that conclusion at all.
They also did so on the basis of very general evidence about Youth Academy
Directors in other clubs without having any evidence about the contractual
arrangements involved and no evidence, it seems, of any directly comparable
circumstances where a manager/head coach of an under 19’s team had been given
full autonomy at a time when there was no Youth Academy Director in post.
51.
The Tribunal’s conclusions do seem to have flowed largely from Alex
Smith’s evidence but Ms Jones’ criticisms of the Tribunal’s reliance on that
evidence was, we accept, well founded. He could give no evidence about what
passed between Mr May and the Claimant when he was appointed or of what
was the Claimant’s understanding at that time. Whatever he may have had to say
about the practices in other clubs, there was no evidence from the other clubs
referred to and, as we have observed, no evidence about the contractual
arrangements involved.
52.
Insofar as the Tribunal relied on the Claimant’s prior experience of
youth academies, we agree with Ms Jones’ criticisms. The circumstances were
not comparable but, in any event, do not show that the Claimant and Respondent
impliedly agreed to the qualification argued for by the Respondent. We also
agree that the Tribunal’s reason for rejecting Mr McPherson’s evidence that he
did not think the Claimant knew it would be a matter of time before he took
over the selection of the team appears illogical; he may have had no prior
experience of youth academies but he had been working alongside the Claimant
throughout the period he had been employed by the Respondent, was thus in a
good position to gain an impression of the nature of the Claimant’s
understanding and, as we have noted, the Claimant’s prior experience of the
working of youth academies was not directly comparable.
53.
We also agree with Ms Jones that it seems difficult to reconcile the
finding to the effect that it could not be said whether Eddie May’s
responsibility for under 19 team selection arose from his role as its manager
or from his Youth Academy Director role with the Tribunal’s conclusion that the
Claimant should have realised that his role would change once such a director
was in post.
54.
The general principle is that the express terms of a contract prevail;
it is to be assumed that parties will have expressed, at the time of
contracting, all the material terms of their contract. It is only appropriate
to imply a term where, on a consideration of the express terms of the agreement
and the facts and circumstances surrounding it, an implication arises that
parties actually intended the term in question to be part of their original
contract. In this case, the express term – unqualified control of the team
without any interference – was contrary to the term implied by the Tribunal.
The term implied was not an obvious inference. There was no necessity for it.
The evidence about what happened in other clubs was not such as to set up an
implication from usage or custom. It said nothing about the particular
contractual arrangements involved in other clubs and, importantly, nothing
about the terms on which a manager and head coach of an under 19 team was
appointed when there was no Youth Academy Director in post. There was no
previous course of dealing which pointed to the implication of the term. In
any event, implication from custom or usage can only normally be on the basis
that it does not conflict with an express term.
55.
We also agree that the wording of the term implied by the Tribunal is
insufficiently precise – what was meant by “the position would necessarily
change”? Would some change be imposed on the Claimant without warning? If so,
what change? If not, what consultation and discussion would that involve? What
was meant by “once [he was] properly fulfilling the role” so far as the timing
of any change that was to take place was concerned? The generality of the Tribunal’s
implied term points to the Respondent intending to seek to bring about changes
in the Claimant’s role so as to reduce his autonomy, once they had appointed an
Academy Director and that person was, in their judgment, “up to speed” but that
does not show that that was what was agreed with the Claimant when he was
appointed.
56.
We are, accordingly, satisfied that the Tribunal erred in law in failing
to find that the Respondent was in breach of contract by imposing a unilateral
variation of contract on the Claimant, as he rightly pointed out in his letter
of 16 December.
57.
Was that breach a material one thus justifying the Claimant’s
resignation? The change of role was plainly a matter of substance. It was, we
agree, comparable to the circumstances in Keegan v Newcastle United Football
Club where we note that the arbitration panel had:
“36. ………no difficulty in understanding how, in a case where he
has been given the final say, a Manager’s position, for example, his authority
over the players, would be undermined if a player whom he did not want was
brought in by the Club over his head.”
58.
The changed circumstances meant that the Claimant, had he not resigned
would have had to accept that he did not have the final say on who played in
the team and, that being so, that he had lost autonomy in those other areas
relating to set pieces, team talks and team formation to which we have
referred. We note that Mr Carruthers did not submit that Ms Jones was
wrong to submit that these matters were fundamental to the Claimant’s role.
59.
The Tribunal accepted that the change in his role was causative of the Claimant’s
resignation and since they ought also to have found that its imposition was,
for the reasons we have explained, a fundamental breach of contract, they
should have found that he was unfairly constructively dismissed. We are
satisfied that in failing to do so, they erred in law.
60.
We turn to the separate case that the Respondent was in breach of the
mutual term of trust and confidence. We have no hesitation in concluding that
the Tribunal erred in finding that there was no such breach. The Tribunal
accepted that the communication was badly handled, that it was “bound to leave
the claimant feeling frustrated and uncertain” and that “Mr May ought to
have met with the claimant himself and sought his views on how the arrangement
was going to work in practice” (paragraph 7.8). That is, they accept that the Claimant
should have been consulted, that the failure to consult was bound to have an
adverse effect on him and it seems that, had the Claimant not had the
misfortune to be working in the world of football, a finding of breach of the
trust and confidence term would have followed.
61.
The Tribunal’s reason for refraining from making such a finding is that
an autocratic style of management is the norm in football but we agree with Ms
Jones that that is not a good reason at all. 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 (Malik
v Bank of Credit and Commerce International SA [1998] AC 20; Morrow
v Safeway Stores) and it is plain from the test articulated by Lord
Nicholls in Malik at p.464, that the conduct in question
falls to be objectively tested. He described the employer’s obligation as:
“ …….no more than one particular aspect of the portmanteau,
general obligation not to engage in conduct likely to undermine the trust and
confidence required if the employment relationship is to continue in the manner
the employment contract implicitly envisages……
The conduct must, of course, impinge on the relationship in the
sense that looked at objectively, it is likely to destroy or seriously damage
the degree of trust and confidence the employee is reasonably entitled to have
in his employer.”
62.
In similar vein, at p.469, Lord Steyn said:
“The motives of the employer cannot be determinative or even
relevant, in judging the employees’ claims for damages for breach of the
implied obligation. If conduct objectively considered is likely to cause serious
damage to the relationship between employer and employee, a breach of the
implied obligation may arise.”
63.
It is, of course, the “other side of the coin” that the employer is
entitled to expect the employee to refrain from any such conduct; there was no
suggestion that the Claimant would have been excused bad behaviour by the Respondent
– the reference to the style of management being autocratic is indicative of
the contrary being the case. The Tribunal’s approach thus involves a one – way
duty of trust and confidence rather than a mutual one and that is, plainly, not
right.
64.
We are satisfied that the approach of the Respondent, which was to
impose the change on the Claimant without prior notice, consultation or
discussion was a plain breach of the duty of trust and confidence. It was
indicative of a wholesale lack of respect for the Claimant and for his views
not only on the change itself but, if it was to happen, on the means of its
implementation. It appeared to be the product of anger on the part of Eddie
May which was provoked by matters which had no obvious relationship to the fact
that the Claimant had been selecting the under 19’s team. It was bound to
upset him.
65.
Regarding the question of whether or not that breach of trust and
confidence was causative of the Claimant’s resignation, we accept that the
findings in fact did not provide the Tribunal with a basis for their conclusion
that if the Respondent’s conduct had amounted to a breach of the duty of trust
and confidence, it was not a factor in the Claimant’s resignation. They rely
on his evidence that it was not the fact Mr McPherson delivered the message
that bothered him but that is not the point. The reference by the Claimant at
the time to being unable to remain in the circumstances whereby Mr McPherson
was to select the team with Mr May not being prepared to change his mind, and
in his letter of 16 December to the removal of his right to choose the team
being “without his consent” and “undermining my position as the Under 19’s
Manager” show that his resignation was not only because he could no longer
select the team but also because that decision had been taken without
consultation with him in circumstances where he justifiably felt that such
consultation ought to have taken place.
Disposal
66.
In these circumstances, we will pronounce an order upholding the appeal
and substituting for the judgment of the Tribunal a finding that the Claimant
was unfairly dismissed. We will thereafter remit the case to a freshly
constituted Employment Tribunal to determine remedy.
