Burning Question

Even employers with no interest in football are likely to have heard or read the name 'Carlos Tevez' in the news over the past year, and many will have empathised with his manager, Roberto Mancini, after the player's refusal to take to the field in Manchester City's match against Bayern Munich as a substitute in a European game. With The Daily Telegraph reporting that Tevez had been formally interviewed by Manchester City Football Club's lawyers (and HR team) as part of the investigation into his conduct, let's look at some of the legal issues raised by the player's refusal to comply with his manager's instructions.

Premier League footballers will have contracts of employment that are likely to be rather different (not just in terms of salary!) to those of most employees. This is relevant because much of what an employer can do will depend on the wording of the contract, "custom and practice" and any other internal or industry-wide policies or practices.

Not tonight, Roberto

For those unfamiliar with the incident, during the second half of a Champion's League match in Munich, Tevez was accused of refusing to comply with Mancini's instructions to come on as a substitute with 35 minutes of the game left. As a professional footballer earning in excess of £200,000 per week, one would hope that Tevez would not object to stretching his legs for half an hour. Tevez argued that he was misunderstood by Mancini, and indeed the charge that was eventually brought against Tevez was that he had refused to warm up rather than refused to play.

One would hope that refusing a management request is not a regular occurrence in workplaces across the country, but what should you do if it does occur? The question should be approached from several different angles. The main considerations will be firstly; has the employee breached their contract of employment by refusing to comply with their employer's instructions and/or secondly; does their refusal amount to gross misconduct?

Breaches and Bloomsburys

The very essence of an employer-employee relationship is that the employee works under the control of the employer. There is an implied contractual obligation requiring an employee to obey all and any lawful and reasonable orders that are given to him or her by their employer. Any refusal to comply is likely to amount to a breach of this implied term. However, it is important to note that this implied duty extends only to reasonable management instructions. An example is Johnstone v Bloomsbury Health Authority (1991), in which a junior doctor did not breach his employment contract when he refused a request to work so much overtime in one week that he believed his health could be affected.

Innocent, presumed misunderstood

Whether or not the refusal could be gross misconduct will often depend on how an employer's disciplinary policy is drafted. Many disciplinary policies describe 'serious insubordination' as gross misconduct. The employer has to consider whether there has been misconduct at that level. The same considerations as above are likely to apply in terms of whether the instruction was legitimate and lawful, and whether there were any mitigating factors that might render the refusal to comply reasonable. In 1981 a newspaper editor refused to sign an undertaking that he would be responsible for any libel claims against the paper. His control over the content of senior writers' stories was limited, and his subsequent dismissal was deemed unfair by the Court of Appeal (Union of Construction, Allied Trades and Technicians v Brain).

Another angle an employer could consider when faced with a public act of insubordination is whether this has "brought the employer into disrepute". This too is regularly included as an example of gross misconduct. In cases such as the revelation of misguided comments on social networking sites, employers considering dismissal should give serious consideration to what reputational damage has actually been caused. This will involve reasoned analysis of exactly how many people will be aware of the incident and what that is likely to have done to the employer's reputation. While an incident may be embarrassing for an employer, it does not necessarily mean that it has brought them into disrepute (see Taylor v Somerfield (2007)).

Returning to Tevez, it is also important to note that, as with any disciplinary proceedings, the presumption of innocence must be maintained (publicly at least). Specifically, comments describing the employee in question as being "finished" before an internal process has been completed are likely to backfire on the employer, as Manchester City's lawyers were no doubt aware. However irate a manager may be when faced with blatant disobedience, best practice will always be to ensure that an incident is thoroughly investigated before any comments are made inferring that conclusions have been prematurely reached.

Employers will also need to consider the appropriateness of suspending an employee during the investigation. Tevez provides an example that even the most high profile, highly paid or important employees should not be exempt from a reasonable period of paid suspension where it is considered appropriate or necessary to enable an investigation to take place. Tevez was photographed on the golf course the following day. He seemed to be bearing up reasonably well during a suspension that ended up lasting two weeks.

Final straws and camels' backs

Comments were also made in the press regarding this incident (which incidentally was the latest in a long line of public misunderstandings between Carlos Tevez and his managers), speculating whether it could be the final straw in an irreparable breakdown in relations between Mancini and Tevez (although they now appear to have resolved their differences). In similar circumstances an employer could argue that, while a misconduct dismissal may not be appropriate, a dismissal on the grounds of 'some other substantial reason' could be. A fair procedure should be followed and the employee given the opportunity to attend a hearing to consider whether the working relationship had irrevocably broken down. The 'some other substantial reason' option may also be appropriate where the employee's actions have not just resulted in a breakdown in relations with management, but also among other employees.

Blues have the blues?

'Tevezgate' raised a number of interesting issues, and managers across the country in all walks of life are likely to have had sympathy for Roberto Mancini. Nevertheless, while an employee's act of disobedience, especially if in public, will be both embarrassing and hugely frustrating for an employer, rash decisions are usually regretted later. While Tevez never appeared at the Manchester employment tribunal arguing for £68,400 in compensation (two and a half day's wages, allegedly), Manchester City could easily have been in a lose-lose situation if they had faced either a potentially huge breach of contract claim, the loss of a £40 million asset for nothing, or both!

Jack Fletcher is a solicitor in the employment department at Bond Pearce LLP.