On the day of finding out whether history repeats itself and, like in 1973, England fail to beat Poland at Wembley and possibly miss out on World Cup qualification, now is a timely moment to consider what may happen to England manager, Roy Hodgson, if such a national sporting disaster comes to pass.
The easy answer is that Hodgson will almost certainly be sacked by his employer, the FA. Typically in such situations the employing association or club will simply summarily dismiss the manager, fail to follow any employment law dismissal procedures, and pay him off under a compromise agreement. That pay-off in most cases will be in the sum of agreed liquidated damages expressly set out in the employment contract: see for example Keegan v. Newcastle United Football Company Ltd  IRLR 94 (Premier League Managers’ Arbitration Tribunal). In short, the contracting parties will probably already have agreed what sum is payable to Hodgson upon termination. However, some manager contracts do not contain such clauses. If there is no notice period, the employer will have to pay up the remaining portion of the fixed-term contract even if the manager has only been employed for a matter of days: see for example Berg v. Blackburn Rovers Football Club & Athletic Plc  EWHC 1070 (Ch). If there is a notice clause, the employer will be able to use well-established contractual principles to contend that the contract would have been terminated at the end of the agreed notice period thereby limiting compensation to that period only: The Mihalis Angelos  1 QB 164. In addition, following a controversial first instance decision at the Liverpool Employment Tribunal (which was not appealed), the employee may also be entitled to additional statutory compensation for his unfair dismissal: Comolli v. The Liverpool Football Club and Athletic Grounds Ltd (Case No. 2405262/2012). Nowadays that sum is capped at 12 months’ wages or £74,200. That may be small change for the likes of Hodgson but, all the same, is not a sum to be forgotten.
Leaping straight to compensation may, though, be jumping the gun. In the past, clubs and associations have been fast to simply pay off a manager upon his dismissal. Of course, there are sound commercial and practical reasons for doing so. However, the assumption that once formal performance capability procedures are not followed a dismissal would be automatically unfair and therefore compensation is payable may be a leap too far. Where it is perfectly obvious that a senior employee, such as the manager of England, should achieve certain standards, in Hodgson’s case World Cup qualification, the need for formal warnings and opportunities to improve is less apparent and he should be fully aware that a failure to achieve those standards could lead to dismissal: S James v. Waltham Holy Cross UDC  IRLR 202. As a result, if Hodgson is dismissed after England fail to beat Poland tomorrow, the best starting-off negotiating position for the FA (provided an agreed termination payment is not already set out in his contract) may be that dismissal was inevitable and no compensation should be payable at all. No doubt, in such circumstances, many disgruntled England fans would resoundingly agree that he should not receive a penny. Hopefully for all concerned, though, the above issues will not arise and plans for England’s participation at Brazil 2014 will be confirmed instead.
John Mehrzad and the Sports Group at Littleton Chambers have recently acted and advised managers and clubs in disputes before the League Managers’ Arbitration Tribunal, the High Court and the Employment Tribunal (including some of the cases cited above). For further information email: firstname.lastname@example.org