McBride v Falkirk Football & Athletic Club (Unfair Dismissal : Constructive dismissal) [2011] UKEAT 0058_10_1706

EAT
McBride v Falkirk Football & Athletic Club (Unfair Dismissal : Constructive dismissal)
[2011] UKEAT 0058_10_1706 · 2011-06-17
[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 10 th 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 10 th 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.