Case of the week: McBride v Falkirk Football & Athletic Club

McBride v Falkirk Football & Athletic Club

FACTS

In December 2008, Mr May became overall manager of Falkirk Football & Athletic Club. Mr McBride was promoted to Mr May’s old position of manager of the under-19 (U19) team. Crucially, Mr McBride was not appointed to Mr May’s other previous post of youth academy director, which was left temporarily vacant.

As part of Mr McBride’s new role, he was told that he would be in charge of the U19s without interference. This included daily training, coaching, development and team selection. It was not clear on the evidence whether or not, prior to December 2008, these duties had derived from the role of U19 manager or youth academy director, as Mr May had occupied both positions.

In October 2009, Mr McPherson was appointed youth academy director. Although he attended U19 training sessions, he did not assume control over training or team selection.

On 9 December 2009, Mr May discovered that Mr McBride permitted some players to arrive late one morning, and that the U19s left cones and mannequins out, rather than clearing them away. Mr May lost his temper and told Mr McPherson that he, the youth academy director, would now be in charge of U19 team selection (which resulted in ultimate control over set pieces, team talks and shaping the team). Mr May instructed Mr McPherson to inform Mr McBride of this change.

Mr McBride resigned and claimed constructive dismissal. In its defence, the club claimed that these duties had always derived from the post of youth academy director, although on the evidence, this was never communicated to Mr McBride and was directly contradictory to his express understanding. At the time, Mr McBride did not complain that the manner that the changes were communicated to him was a breach of trust and confidence.

DECISION

The Employment Appeal Tribunal (EAT) overturned the decision of the employment tribunal (which had dismissed Mr McBride’s claim) and held that Mr McBride had been constructively dismissed.

In relation to the breach of contract claim, the EAT held as follows:

(a) On the evidence, it was an express term of Mr McBride’s contract that he would be in control of the U19s without interference.

(b) Express terms of a contract prevail. Terms should be implied only where it is clear that both parties actually had that intention from the outset.

(c) Losing autonomy to select the U19 team, decide set pieces, give team talks and choose formations was a fundamental change to Mr McBride’s role and causative of his resignation.

(d) The change was unilateral and without Mr McBride’s consent and was, therefore, a fundamental breach of his contract.

A finding of constructive dismissal was made.

In relation to the breach of contract claim, the EAT held as follows:

(a) There had been a breach of the implied duty of trust and confidence in the manner in which Mr May’s decision had been communicated. Mr May, as Mr McBride’s line manager, should have told him of the changes himself and sought his views on how the arrangement would work in practice.

(b) The autocratic style of management prevalent in the football industry is (contrary to the findings of the employment tribunal) not justification for such treatment.

(c) There was, however, no causative link between the club’s breach of trust and confidence and Mr McBride’s resignation.

IMPLICATIONS

This case underlines the importance of good management. The employer will not be excused from its duty of care simply because a workplace has an autocratic, brusque or even insensitive character. It also serves as a reminder that terms will be implied only where absolutely necessary, or where they reflect the understanding of both parties, and highlights the importance of well-drafted contracts.

Clare Gregory, employment partner, DLA Piper








Practical guidance from XpertHR on constructive dismissal



  • How to protect against claims of constructive dismissal The XpertHR “how to” service provides guidance on protecting against claims of constructive dismissal.
  • Express and implied contract terms The XpertHR employment law manual explains express and implied contractual terms of employment.
  • Varying contracts: overview Nicola Doran of Osborne Clarke begins a series of articles on varying contracts of employment by looking at employers’ legal position if they vary employees’ contracts and the procedure that they must follow if they wish to avoid being in breach of contract.

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