Poor performance and confidence: traps for football clubs and their managers

Poor performance and confidence: traps for football clubs and their managers

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Author: Richard Santy

Mick McCarthy is the latest football manager to be sacked so far this season. As Wolves slid towards relegation the straw that broke the camel's back for McCarthy's boss was a 5-1 home defeat by West Bromwich Albion.

A football manager who has a contract of employment with their club is an employee like any other and has the same legal rights, for example, not to be unfairly dismissed, as an employee in any other walk of life. In addition, any employee must be given (or paid in lieu) of the notice they are entitled to under their contract.

Poor performance is a potentially fair reason to dismiss an employee but an employer needs to follow a fair procedure before carrying out such a dismissal and this will involve giving the employee time to improve and offering support.

A football manager operates in a totally different environment from the usual workplace. Their performance (or lack of it) is acutely visible and there is nowhere to hide if things are not going well.

A reasonable employer might be expected to give an underperforming employee several months to turn things around but, in football, timescales can be very short; a manager could find themselves dismissed without ceremony after only a few lost games.

It was reported that Mick McCarthy's position at Wolves had been undermined by the actions of the Chairman of the club in the week's leading up to his termination.

In extreme cases, behaviour which undermines a senior employee's position could be the trigger for them to resign and claim constructive dismissal. This would usually be based on breach of the term of mutual trust and confidence.

In football, interference with a manager's independence and judgment leading to a fall out is a familiar story. Earlier this month the England football manager Fabio Capello is reported to have resigned due to the FA's decision to strip John Terry of the captaincy without Capello's agreement.

Although the term of mutual trust and confidence plays a significant role in the normal employment relationship, in football confidence is vitally important.

A successful manager who has the confidence of the club and its fans can be a talisman, drawing the best performances out of players and creating the virtuous circle of self-belief translated into results.

Conversely, where belief in a manager's capabilities starts to ebb away negativity (these days spread widely through electronic media) can be a self-fulfilling prophecy with the individual very quickly becoming a Jonah figure.

The terms of Mick McCarthy's termination are not known but any manager could bring a breach of contract claim if their employment was terminated other than in accordance with its terms.

An employee who has been employed for at least 12 months (rising to two years from 6 April) can also bring an unfair dismissal claim in the employment tribunal within three months of their dismissal. This is a statutory claim under the Employment Rights Act 1996 and any compensatory award is capped in most cases (currently at a maximum of £72,300).

This means that such claims are not really worthwhile for higher earners who can recover uncapped damages for wrongful dismissal (breach of contract) in the ordinary courts. In addition, such claims can be brought up to six years from the date of termination.

Mitigation will be an important element in a club's defence of any breach of contract claim. However, an ex-manager may try to argue that it is impossible for him to mitigate his loss by obtaining another similar position because his reputation has been damaged. Clubs need to be careful how they handle any publicity around the dismissal to avoid arguments that the ex-manager's prospects in the job market have been damaged. Although Kevin Keegan failed in his £16.5 million claim for "stigma damages" from Newcastle United his argument - that he was tainted by his association with the club and would not be able to obtain further employment in football until he retired - could be made by others more successfully in the future.