This article was first written for and published by LawInSport. Click here to view the original.
On 9 October 2014, after a six-month wait while bound by the confidentiality provisions of a settlement agreement1, Kevin Pietersen published his autobiography2.
In the book, Pietersen sets out his version of the events leading up to the termination of his central contract with the ECB in February 2014, and in particular alleges that he was the victim of campaign of bullying by teammates and coaching staff. These allegations have been denied by the ECB who have hinted that it was Pietersen himself who was a disruptive influence on the team, and have maintained that his contract was ended for the good of the team. More specifically, it has claimed that Pietersen’s departure was necessary to ensure that the team could be confident that the captain Alistair Cook would have the full support of all players, with everyone “pulling in the same direction and able to trust each other”3.
Although there is no suggestion that Pietersen and the ECB are engaged in a legal dispute regarding the termination of his contract, the comments made on both sides raise a number of interesting issues from an employment law perspective. In this blog, we consider the legal issues that can arise where a player falls out with their teammates.
Although complaints of bullying in the workplace are often made, it is notoriously difficult to succeed in a legal claim against an employer for bullying.
Firstly, there is no such thing as a free-standing claim of ‘bullying’. Unlike, for instance, the right not to be unlawfully discriminated against because of a protected characteristic4, there is no statutory right not to be bullied. Therefore to bring a claim at all, employees need to be able to fit their allegations within another cause of action. If there is evidence they are being singled out because of their race, religion, sexuality or any other protected characteristic they may be able to bring a claim of discrimination under the Equality Act 2010. However, if the reason they are being singled out is simply because their colleagues do not get on with them, this will not amount to unlawful discrimination.
Whilst there have been cases in which employees have successfully argued that employers have breached their duty of care by allowing bullying to take place, such cases are relatively rare and tend to be limited to extreme circumstances5.
Instead, the most common claim brought by employees who contend they have been bullied is a claim for constructive unfair dismissal under ss.95 and 98 of the Employment Rights Act 1996 i.e. a claim that they have been forced to resign due to being bullied. Employees often rely on a series of actions over a period of time, which, they say, taken together amount to a breach of the implied term of trust and confidence. However any employee resigning in order to bring a constructive dismissal claim should be aware that they must have two years’ continuous employment with the employer in order to bring the claim, and that compensation is limited to the lower of a year’s pay or £76,574. For a sportsperson at the top of their profession, the sum of £76,574 may be only a tiny proportion of what they would have earned had they stayed in employment. Further, the reputational issues attached to making allegations of bullying may outweigh the benefit of winning an employment tribunal claim.
Secondly, bullying can be very difficult to prove as a matter of fact. Often it consists of a number of different, subtle acts, which from the outside appear to be entirely innocuous. Unless there are independent witnesses who are willing and able to provide evidence, it will often come down to the employee’s word against that of the person said to have bullied them.
Thus in reality a sportsperson who feels they are being bullied by their teammates has fairly limited options for redress under employment law.
The ECB has stated that Pietersen’s contract was terminated to ensure that captain Alistair Cook had the full support of the team, and to ensure that everyone was “pulling in the same direction and able to trust each other”6. Although it has not given any more detail of exactly why it was felt that Pietersen had to leave in order to achieve team cohesion, it seems that from the ECB’s perspective, Pietersen was a disruptive influence on the team.
What options does an employer have when faced with an employee that is having a negative impact on their colleagues?
An employer can consider whether that employee’s behaviour potentially amounts to misconduct, for instance if they are refusing to carry out their duties, refusing to follow instructions, or acting in an aggressive or confrontational manner towards colleagues. If so, then the employer may be able to use its disciplinary policy to deal with the behaviour, although to do this properly and fairly may take some time. In the context of professional sport, this time this takes may raises a tricky issue for the employer as to what to do with the sportsperson while the disciplinary process is ongoing. They will have to decide whether to allow them to continue to play, despite the fact that they could be causing further disruption to the team, or whether to suspend them to try and stop them causing further disruption, but with the result that they lose the benefit of that person’s skills and talent during that period. If a disciplinary process ultimately concludes that there has been misconduct then, depending on the nature of the behaviour and the circumstances of the case, the employer may be able to impose a disciplinary sanction ranging from a verbal warning to dismissal without notice for the most serious cases.
However, not all cases are so straightforward. Sometimes, employees fall out with each other and it is not clear whether anyone is to blame. Personalities can clash, causing huge tensions in the workplace. An employer faced with this situation will be expected to try and resolve the personality differences by taking reasonable steps to enable the employees to resolve their issues with each other. This is likely to involve identifying those issues and exploring what changes can to be made by either or both parties to prevent them recurring in future. In some cases, this may require consideration of reallocating either or both employees to different duties, although in the context of professional sport this is less likely to be a viable option. It may also require the use of external mediators to see if they can succeed where internal efforts have failed.
However, if all reasonable steps have been taken and have still not resolved the issues – or if the employer believes it to be clear that nothing it can do will resolve the issues – then it can consider terminating the employment of one or more of the employees involved on the grounds of a irretrievable breakdown in relationships. It is now well-established that this can amount to a potentially fair reason for dismissal under s.98 of the Employment Rights Act 19967. However to avoid liability for an unfair dismissal claim the employer will still need to show that it acted reasonably in all the circumstances, and if the court considers there were further steps that could have been taken to try and retrieve the relationship before resorting to dismissal, then it is likely to consider the dismissal unfair.
The situation surrounding Pietersen’s departure from the England team highlights some of the difficult employment law issues that can arise when an employee falls out with one or more of their colleagues. These issues are likely to be all the more acute in the context of professional sport, especially where the employer may be faced with a choice between retaining a star player or maintaining harmony within the team.