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Termination: ‘You’re getting sacked in the morning!’

Posted on 23rd November, 2018

Last week Slavisa Jokanovic became the first Premier League manager of the season to be sacked (surprisingly it has taken this long and it wasn’t Jose Mourinho!) which gives me an excuse to talk about dismissal and the different types of termination.

A contract of employment can end in various ways, including dismissal, by resignation, by mutual consent, by expiry of a fixed term or by operation of law (very rare and mostly commonly through the principle of frustration).

Football managers are essentially employees of their clubs and just like most of us who work, they too will have a contract of employment. It is important whenever a termination occurs that any contracts of employment are reviewed in the first instance and it’s kept in mind that employees may also be entitled to statutory rights.

Not every termination of a contract is regarded as a ‘dismissal’ but as many legal rights under employment law depend on an employee having been dismissed, Tribunals are reluctant to find that a contract has ended by mutual agreement.

Certain situations arise where it can suit both parties to end employment and often an employer will offer an inducement to the employee (usually monetary) to give up any rights they may have and this can be done through a settlement agreement (sometimes called compromise agreements). This tactic can be used to help an employee from having to tell future employers that they were dismissed i.e. where a football manager and club have ‘mutually agreed’ to part ways (even where it would seem like it was the club’s decision).

In order to end a contract of employment some kind of notice (or payment in lieu of notice) will likely have to be given by either the employee or employer depending on which party is seeking to end the agreement. Notice, (if not set out in the contract) is covered by the Employment Rights Act 1996 and is much more employee friendly. The general rule is that an employer must give one weeks’ notice for every full year of employment up to a maximum of 12 weeks whereas it’s only 1 week for employees!

Problems often arise in employment matters where terms of the contract have been breached or an employer has not followed due process or a fair procedure when dismissing an employee. This is no different in the world of football e.g. when Brian McDermott was sacked as manager of Leeds United his assistant Nigel Gibbs had his first team coaching duties removed and he was able to successfully argue that this amounted to repudiatory breach of his contract and he was subsequently awarded compensation [Gibbs v Leeds United 2016].

A further example is when Kevin Keegan resigned and then successfully claimed that he was constructively dismissed by Newcastle United following a player being brought into the club despite his strong objection [Kevin Keegan v Newcastle United 2010]. These two examples are interesting as they show that resignations can sometimes be treated as dismissals.

Of course it is not always employees (or indeed managers) that are the ‘innocent’ party in terminations. Tony Pulis sought the early payment of a performance bonus for keeping Crystal Palace in the Premier League that was payable after a set period of time and subject to Pulis still being manager. Crystal Palace paid the bonus early (at Pulis’s request) at which time Pulis resigned on the eve of the new season. Crystal Palace were able to successfully recover this payment and damages from Pulis given his conduct – although this didn’t deter West Bromwich Albion for appointing him as manager later that season [Tony Pulis v Crystal Palace 2016].

Another recent example is at Sunderland AFC who this season terminated the contract of their player Papy Djilobodji who had been awol and subsequently failed a fitness test upon his late return. This amounted to repudiatory breaches of his contract and he was therefore provided with his notice and was dismissed.

What may also come as a surprise to some is that obligations can still be owed following the termination of the contract and these are usually referred to as ‘restrictive covenants’. For example, a football club might try and prevent a manager who resigns from working for another competitor for a set period of time. Post termination restrictions are a complex area of law and I would recommend seeking legal advice when drafting or seeking to enforce restrictive covenants.

Before Fulham dismissed Slavisa Jokanovic as his employer’s they would have been expected to follow their own disciplinary procedures (including the right to appeal) before making their decision. Dismissals for capability reasons i.e. performance can be deemed to be fair depending on the circumstances (some will argue that this particular decision is harsh after Jokanovic got Fulham promoted last season but football is the results business after all!). It is also worth remembering that a failure to follow a fair disciplinary procedure can result in a potentially fair dismissal being regarded as unfair.

I will personally be hoping that Rafael Benitez isn’t the next manger to leave but if like Fulham or Slavisa Jokanovic you find yourself in circumstances where you may have to dismiss an employee, or you have been dismissed, then the Employment Team at Jacksons can help!

Please contact Matthew Rowlinson, for any advice regarding dismissal or any other Employment Law matter. Matthew works Primarily from our Newcastle office but is also available for appointments in Teesside or Sunderland.

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