Is your boss making your job unbearable? If so, what can you do about it?

That is essentially the question which faced both Kevin Keegan and Alan Curbishley prior to their recent departures from Newcastle United and West Ham United respectively.

It is nothing new to see high profile football managers being swiftly removed from their post when results do not meet with expectations.

In the case of Keegan, he felt that the scope of his authority as manager was being undermined by two directors, namely Dennis Wise and Tony Jiminez. Keegan asserts that he had been given assurances, prior to his appointment as manager, that he would have control over both transfers in and transfers out of players. On the other hand, the Club states that Keegan was made fully aware of his limited remit in respect of transfers and that he also worked within that remit from 16 January 2008 until his departure.

In the absence of any settlement agreement, which to outsiders seems unlikely, one possible legal redress available to Keegan would be to bring a constructive dismissal claim in an employment tribunal. That would involve Keegan showing that there has been a repudiatory breach of his employment contract by the Club, i.e. a breach that is sufficiently serious to go to the root of the contract.

This may include, for example, a breach of what is known as the implied obligation of trust and confidence that exists in every employment relationship between employer and employee. The legal test is that:

"an employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee."

What does that actually mean in practice?

A breach of the implied obligation of trust and confidence need not be an obvious one-off event and may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. This is known as the "last straw" doctrine. The "last straw" need not itself be a breach of contract provided that the cumulative series of acts taken together amount to a breach of the implied term. Keegan may attempt to argue that a build-up of transfer decisions, including the sale or attempted sale of players he wished to keep at the Club, basically amounted to the last straw.

Similarly, it has been reported that Curbishley expected to be in full control of West Ham United's transfer dealings and that developments such as the sale of Anton Ferdinand and George McCartney in the August transfer window were not consistent with that.

It is perhaps likely that football clubs and managers alike will give greater consideration at the time of appointment to what the employment contract says in respect of transfer dealings.

19 November 2008

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