Keegan's game plan over compensation

10:06am Saturday 6th September 2008

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With Kevin Keegan rumoured to be planning a legal case against Newcastle United, Owen Amos digs through his law books to discover what he could pursue and what he can’t.

EVERYONE’S talking of constructive dismissal. What is it?

According to direct.gov.uk, the Government’s website, constructive dismissal occurs when “you’re forced to quit your job because of the way you’re treated”. So, even if your employer doesn’t sack you, they may as well have – because their actions make work unbearable. The employee may resign over one incident, or a series.

Does being forced to work with Dennis Wise constitute bad treatment?

“The reason for your job must be serious,” says the Government.

“There must be a fundamental breach of your contract”.

Examples include not paying you, bullying you, or – and here’s where Keegan’s lawyers may look – “forcing you to accept unreasonable changes to your conditions of employment without your agreement”.

Keegan joined Newcastle on January 16; Wise joined as executive director (football) two weeks later. Keegan claimed he was unaware of Wise’s arrival when he agreed to return, so this could constitute an “unreasonable change to conditions of employment”.

Keegan also claimed, in his parting statement, that “clubs should not impose upon any manager any player that he does not want” – a reference to Nacho Gonzalez and Xisco, two players bought from Spain on September 1, apparently without Keegan’s knowledge.

Does buying a player he does not want constitute an “unreasonable change”?

Possibly. But there’s a rather huge but… But?

“An employee can’t claim constructive dismissal if they haven’t been employed for a continuous period of a least 12 months,” says Helen Elstob, employment law solicitor at Clark Willis, a Darlingtonbased law firm. “There are some exceptions to the 12- month period – such as discrimination, but I can’t see how they apply here.” Note continuous. Though Keegan’s first reign lasted four years, 11 months, and two days, his second coming lasted only seven months and 19 days – ruling out constructive dismissal.

(It is, by the way, too late to claim constructive dismissal for his first departure. Claims must be made within three months of resignation).

What about wrongful dismissal?

Anything that breaks the “mutual trust and confidence”

between employee and employer could lead to a wrongful dismissal case – for example, by “changing an employee’s job or terms of employment”. However, as Ms Elstob says: “A wrongful dismissal only applies when there has been a dismissal.”

This, perhaps, explains Newcastle United’s repeated insistence that Keegan walked, and was not sacked.

“For the avoidance of any doubt,” their first statement said, “the club has not sacked Kevin Keegan”. I bet they were tempted to write “not” in capitals.

So Keegan can’t claim wrongful dismissal, because he wasn’t sacked. And he can’t claim constructive dismissal, because he wasn’t there a year. If only a law existed that banned a club owner landing unproved Spanish strikers on much-loved managers. He’d be quids in.

Can he do anything?

Possibly. “He still may be able to claim breach of contract through the civil court,”

says Ms Elstob. Civil courts, as opposed to criminal courts, deal with disputes between private individuals or organisations.

Generally, the complainant’s aim is compensation.

Keegan would have to convince the court his contract was broken. However, unless the contract specifically banned executive directors (football) or unproven Spanish strikers – which, as both were recruited, appears doubtful – it seems unlikely Newcastle broke Keegan’s contract.

The two parties may come to a gentleman’s agreement, but it seems Keegan has no legal right to compensation.

Here’s hoping the Soccer Circus comes good.