Lessons from the beautiful game (2)

David Faulkner

Despite its well-documented failings, football remains for many the beautiful game.  Whether you agree with that or not, it certainly remains at the centre of public attention, sometimes because of an outstanding game, often as a result of footballer misbehaviour on or off the pitch, and occasionally following tragic events such as those which recently unfolded in an FA Cup tie between Spurs and Bolton. 

In my previous post I began to look at what we can learn from how football clubs manage their staff.  Though football is in a world of its own in this as in many other respects, maybe there are lessons we can all learn from how they conduct their employee relations.  In the last post we looked at how the spectre of the vote of confidence in an ailing manager reminds all employers of the need to make sure they join up what they say about an employee in different arenas.  In particular, we noted that it’s storing up trouble to offer an anodyne assessment of an employee’s performance in an appraisal where the reality is that they’re just not doing what’s required. 

Another remarkable feature of employment practice in the football world is the speed with which a new manager is appointed once his predecessor has been given the chop.  Hailed as the perfect appointment to take the club to new heights, it doesn’t take a genius to work out that the new man was talking to the club whilst the previous incumbent was still in post.  This has become such an accepted practice that my struggling team was criticised by fans and media alike for not having a replacement lined up when they decided recently it was time for a change.  You make your decision, and then you tell the employee, however dramatic the consequences may be for their employment: that’s how it works. 

Or does it?

To what extent can universities and colleges make their strategic decisions and simply consult with employees about implementation?  Are there occasions when you should be consulting your staff about the merits of your decisions or are they entirely your prerogative?

These questions usually arise in two scenarios.  The first is where there are changing expectations of staff performance.  Many universities and colleges, faced with an increasingly demanding marketplace, have ramped up what they expect of their staff.  In HE for example, the demands of the forthcoming REF mean that for many institutions, research quality simply has to improve.  But did employees “sign up for” research of a certain star quality?  If the game has changed, is it as simple as saying that employees will just have to keep up?  The second scenario is equally familiar.  For many colleges and universities, budgetary pressures have kept many forms of restructuring on the agenda.  When making such changes do you have to involve employees in discussions about where to cut costs or do you make your decisions and talk later?

The Courts and Employment Tribunals haven’t given particularly clear guidance on either of these issues.  A few years back the Employment Appeal Tribunal held that where a strategic or commercial decision means dismissals are inevitable, collective redundancy consultation under TULRCA 1992 requires consultation about the decision itself as well as the details of implementation.  But other cases are less clear.  And most lawyers will tell you that the scope for demanding more of your employees as times change will largely depend on contractual arrangements and custom and practice.

People who sit on Employment Tribunals are inevitably influenced by wider considerations than the facts of the case before them.  As difficult economic conditions persist, employees who are inflexible in responding to the demands of a highly competitive environment are generally unlikely to gain the Tribunal’s sympathy, whilst employers who have tried to follow a halfway decent consultation process to implement change are – to use a football metaphor – likely to remain onside.  Certainly that’s the case where you have lay representatives hearing your case, but with Employment Judges sitting alone to hear unfair dismissal cases from April this year, one wonders if the game will change.  If any of your decisions end up being looked at by a Tribunal, it will certainly be worth considering whether you should ask for lay members to take up their positions on the wing.

David Faulkner
Partner
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1385
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From → General Interest

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