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Constructive Dismissal

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[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (Lady Smith) has handed down its decision in McBridge v Falkirk Football Club, which is authority for the propositions that: 

(i) the duty not to act in a manner likely to undermine trust and confidence - the well-known 'Malik' test is judged from an objective standpoint, so an employer cannot rely upon factors in a particular industry, in this case, of 'an autocratic style of management' being 'the norm in football', as a defence to a breach of the implied term of trust and confidence. 

(ii) a term ought not to be implied into a contract of employment which is imprecise, unnecessary or not obvious. 

The Claimant, the Club's U19 team manager, resigned after his right to pick his team was arbitrarily removed after an Academy Director was appointed. At the employment tribunal, his claim for Constructive Dismissal failed; the tribunal, having implied into the Claimant's contract a term that he would relinquish his right to pick his team once an Academy Director was appointed, found no breach by the Club. 

The EAT overturned the employment tribunal's decision, substituting a finding of Constructive Unfair Dismissal, sending off the claim to a fresh tribunal for remedy. The EAT criticised the employment tribunal for implying a term in the Claimant's contract which contradicted an express term, and in any case was neither necessary, obvious nor precise, and gave useful guidance on when to imply terms at paragraphs 54 and 55. 

This judgment will give succour to beleaguered football managers, with the EAT referring with approval to an aspect of a Premier League arbitration panel ruling in Keegan v Newcastle United.