Friday, December 20, 2013

Mr Tan's Ultimatum to Malky

The BBC reports that Cardiff City Manager Malky Mackay has received an email from the Premiership club's owner Vincent Tan telling him that he must either resign or be dismissed.

Mr Tan's tenure at the Club has previously attracted attention after he was on the receiving end of the fans' ire when he decided to change the colour of the shirts in which the team (nicknamed the "Bluebirds" for what will be obvious reasons) to red.

The Employment Tribunals have long held that where an employee is told that if they do not resign their dismissal is inevitable this is in reality a dismissal by the employer (and of course potentially unfair dismissal), even if the employee hangs around for long enough to negotiate terms of exit so as to extricate as much from the wreckage as they can (e.g. an agreed reference.)

This is to be distinguished from the situation where the employee is given a genuine choice but to resign, with time to reflect but in the knowledge that dismissal is highly likely if they do not go of their own free will. This is not  uncommon  in the context of a disciplinary hearing, where an employee will sometimes take the hint and resign because this looks better on their CV, or avoids a dismissal appearing on a reference.

Even if there is not an actual dismissal by the Employer in this situation there will often be a constructive dismissal. Informing the employee that one way or another you are bringing the contract to an end is as clear a statement as is possible of an intention no longer to be bound by the terms of the contract - a fundamental breach entitling the employee to resign and claim.

Mr Mackay has understandably not resigned - he will no doubt wait for the axe to fall and continue to be paid in the meantime.

No doubt he will be picking up a cheque from Cardiff City sooner or later. Whether they will find it easy to find a willing replacement remains to be seen.