Football and employment law – hot topics ahead of the 2021/22 Season

2nd June 2021

Just like any other employer, football clubs are currently facing a number of employment-related issues.  Here is our run-down of what we see as the big employment issues facing football clubs ahead of the 2021/22 season:

• Employment status – the Supreme Court’s judgment in Uber earlier this year brought employment status back into the spotlight, making it a good time for clubs to consider the employment status of its workforce, particularly its casual staff and contractors, which often includes match-day staff, scouts and part-time coaches. Determination of employment status is interconnected with an individual’s status for tax purposes. Since 6 April 2021, taxation of certain individuals engaged through personal service companies has changed significantly, with the burden of deducting PAYE and NICs now falling on the end-user (invariably, the football club). As such, now is the time for clubs to audit their workforce and consider if people are correctly classified – from both an employment perspective and a tax perspective.  While a review of staff contracts to check they are fit for purpose should form part of this, it is important to note that courts and tribunals will look beyond the form of such contracts to the reality of the relationship when assessing employment status.

• Environmental, social and governance (“ESG”) – being a sustainable and environmentally conscious employer is more important now than ever before. Football clubs have a big role to play in this. Tottenham Hotspur was recently named as the “greenest club” in the Premier League Sustainability Table and has become a signatory of the UN Sports for Climate Action Framework.  In light of the ESG movement, green employee benefits are set to become increasingly important to staff.  On the social side of matters, we are arguably now entering (or are already in) a mental health crisis, partially as a result of multiple lockdowns and continued uncertainty. Clubs should therefore consider, and undertake risk assessments as to, how this long-term impact on mental health will affect their staff and resources.

• COVID-secure protocols – it is likely the existing league protocols will, to some extent, remain in place for the start of next season. Clubs should regularly remind players of their obligations under the relevant protocols to mitigate the risk of breaches by players or other staff, which may result in fines for the club. Whether or not the club can recover the cost of a fine from the relevant individuals, for example, by deducting it from wages, will depend on their contract of employment and the club’s disciplinary procedure. The Standard Player Contract would not permit a unilateral deduction from a player’s wages in these circumstances.

• Action against staff for failure to comply with Covid measures and “health and safety” dismissals – where the relevant league protocol and/or government guidance provides that an individual must or should, for example, wear a face covering in certain circumstances, club instructions implementing the same will likely constitute a reasonable management instruction, although any specific objections should always be considered on a case-by-case basis (to determine whether the instruction is “reasonable”). You will likely have seen employment tribunals making decisions as to whether an employer’s decision to dismiss an employee for their refusal to wear a face covering at work was fair. An employment tribunal also recently determined that an employee had not been unfairly dismissed where his employment was terminated because he refused to attend work in response to a belief that there was a serious or imminent risk of danger to him or others – namely, the pandemic. While the trend of the case law in this area will be welcomed by clubs, it should be noted that tribunal decisions are: (a) first instance decisions and therefore not binding on subsequent cases; and (b) incredibly fact sensitive.

• “No jab, no job” – the UK government has not made vaccination mandatory. Ultimately, whether employers can make vaccination mandatory for staff in a lawful way will likely depend on UK government and health authority guidance at the time the instruction is made and the job the relevant individual does, having regard to whether other, less invasive measures would suffice. Clubs should be mindful that any blanket approach could indirectly discriminate against certain groups, such as on the basis of disability or religion. We discuss this topic in further detail here.

• Heading in the professional game – broadly speaking, clubs have a duty to take reasonable care for the safety of their employees. While players are generally deemed to have consented to the risk of injury associated with the game, the football authorities are expected to issue rules ahead of the 2021/22 season limiting the amount of heading players can do in training. Clubs will need to develop policies and procedures to ensure compliance with the new rules, to avoid sanction from the football authorities as well as, more generally, liability under health and safety legislation and/or for negligence.