HR professional magazine view on Lambert departure,

[shefcanary 2,952]

can be found here

 

http://www.hrmagazine.co.uk/hro/features/1075077/paul-lambert-v-norwich-city-it-myth-resignations-accepted-binding

 

Paul Lambert V Norwich City: It is a myth that resignations need to be accepted before they are binding

James Hall, 23 Oct 2012

The recent high profile departure of Paul Lambert from Norwich City to become manager of Aston Villa raises a number of interesting questions about departing senior executives. With both parties allegedly suing each other and any action set to take place before the Premier League Managers’ Arbitration Panel, this will be an interesting dispute to follow.

Resignation

Lambert reportedly resigned from his role on 31 May 2012, an action that Norwich City allegedly refused to accept.

It is a common myth that resignations need to be accepted before they are binding. In reality, there is no truth in this. Provided that notice has been validly given, in accordance with the terms of the contract, it cannot be refused or indeed withdrawn without the consent of both the employee and the employer.

Refusals may serve a role in some situations. For example, where an error has been committed and a senior executive feels obliged to resign, the employer may make a symbolic ''refusal'' in order to persuade the executive to stay. However, this ''refusal'' only serves a purpose where both parties decide they wish the relationship to continue.

Restrictive Covenants

A key part of City''s argument is that Lambert was not able to enter talks with Aston Villa without their permission. Meanwhile Lambert asserts that he had resigned from his post and was therefore a ''free agent''.

Whilst the specific circumstances for major football clubs may be different many employers, City''s desire to prevent competition will ring true for many employers.

For a non-competition restriction to be valid, it is essential that the right balance is struck between protecting a legitimate business interest and the employee''s need to find gainful employment in their specialist field. To this end, the restriction must offer no more than reasonable protection and cannot be there simply in order to prevent key employees from moving to a competitor.

Employers will often cite knowledge of confidential information as a reason for trying to enforce such restrictions. However, protection for ongoing confidentiality can be enforced regardless of where the senior executive is working and is a key point in assessing the reasonableness of any non-competition clause.

The duration of the restriction is also key. In the current climate it is unusual for restrictions in excess of 6 months to be considered reasonable for any but the most senior of employees and even then it can be questionable. However, notice periods are contractual and can only be reduced by agreement. If there is provision in the contract for enforced garden leave, it is possible to invoke this the moment an employee resigns. As many senior employees will have six month notice periods, even if the duration of their restrictions is reduced by the period of any garden leave, this is a straightforward way for employers to prevent any damaging competition for this period.

Alternative Dispute Resolution

The Lambert dispute is to be determined by the Premier League Managers'' Arbitration Panel. This is just one of a number of ways to a dispute without going before a public tribunal.

For employment matters, ACAS is the most commonly used service. With each tribunal case assigned an ACAS conciliator, contact will be made with each party before any hearing to encourage a private settlement, of which confidentiality is usually a key element As the conciliator will be the point of contact, the parties themselves do not need to communicate with each other.

For more entrenched disputes, formal mediation can be a useful tool. For this, the parties will convene with a neutral third party who will work to bring about agreement. While the parties ultimately retain control of the process, the perspective of a qualified mediator can often be useful for both sides.

The key difference between arbitration and mediation is that any decision by the arbitrators is legally binding on the parties. It is not used as frequently in employment matters, as recourse to an employment tribunal is often cheaper. However, some industries, such as football managers, have established their own arbitration forum which they can revert to. Although some see arbitration as litigation by a different name, it is possible to make it a bespoke process and, importantly, the proceedings are no more public than the parties wish them to be.

Conclusion

It will be interesting to see how the dispute between Lambert and City plays out. However, despite the very public initial snipes, due to it going to arbitration, much of the detail may remain confidential between the parties.

James Hall Associate, Charles Russell

 

Unfortunately his conclusion gives no view on what the outcome may be (sitting on the fence as all such professionals do in print).  I''m concerned that in the first part it goes to the PLMAP - surely they must be biased towards the manager? 

[Tetteys Jig 851]

It doesnt take an HR expert to know that Villa tapped him up.

[Bill 1,788]

"A key part of City''s argument is that Lambert was not able to enter talks with Aston Villa without their permission. Meanwhile Lambert asserts that he had resigned from his post and was therefore a ''free agent''"

 

If that is accurate then it blows a massive hole in the twaddle about Lambert having a '' clause in his contract'' that allowed him to talk to another club - a clause that the naughty Norwich refused him to exercise (or so we were told).

 

My understanding is that Lambert wanted to join Villa. How much of that was down to a ''better offer'', how much was Norwich wanted rid and what percentage of the two was it ?

 

He resigned, as he is entitled to. However that resignation would incur compensation ie the rest of his contract and any claim of loss Norwich might deem they incured by his sudden departure.

 

To offset much, or all of that, Lambert appears to be suing Norwich for constructive dismissal ie they forced him out

 

If the previous dispute with us and Colchester is anything to go by then we will be paid for the remaining part of the contract and possibly further compensation. It maybe that Villa can avoid any fine or sanction by offering City more generous terms in lieu of that.

 

I believe it was McNasty''s refusal to pay even the minimum that caused Colchester to take it as far as they did. It will curious to see how Villa play it. Cough up, or try to see what they can get away with.

 

 

[PurpleCanary 6,384]

[quote user="shefcanary"]

can be found here

 

http://www.hrmagazine.co.uk/hro/features/1075077/paul-lambert-v-norwich-city-it-myth-resignations-accepted-binding

 

Paul Lambert V Norwich City: It is a myth that resignations need to be accepted before they are binding

James Hall, 23 Oct 2012

The recent high profile departure of Paul Lambert from Norwich City to become manager of Aston Villa raises a number of interesting questions about departing senior executives. With both parties allegedly suing each other and any action set to take place before the Premier League Managers’ Arbitration Panel, this will be an interesting dispute to follow.

Resignation

Lambert reportedly resigned from his role on 31 May 2012, an action that Norwich City allegedly refused to accept.

It is a common myth that resignations need to be accepted before they are binding. In reality, there is no truth in this. Provided that notice has been validly given, in accordance with the terms of the contract, it cannot be refused or indeed withdrawn without the consent of both the employee and the employer.

Refusals may serve a role in some situations. For example, where an error has been committed and a senior executive feels obliged to resign, the employer may make a symbolic ''refusal'' in order to persuade the executive to stay. However, this ''refusal'' only serves a purpose where both parties decide they wish the relationship to continue.

Restrictive Covenants

A key part of City''s argument is that Lambert was not able to enter talks with Aston Villa without their permission. Meanwhile Lambert asserts that he had resigned from his post and was therefore a ''free agent''.

Whilst the specific circumstances for major football clubs may be different many employers, City''s desire to prevent competition will ring true for many employers.

For a non-competition restriction to be valid, it is essential that the right balance is struck between protecting a legitimate business interest and the employee''s need to find gainful employment in their specialist field. To this end, the restriction must offer no more than reasonable protection and cannot be there simply in order to prevent key employees from moving to a competitor.

Employers will often cite knowledge of confidential information as a reason for trying to enforce such restrictions. However, protection for ongoing confidentiality can be enforced regardless of where the senior executive is working and is a key point in assessing the reasonableness of any non-competition clause.

The duration of the restriction is also key. In the current climate it is unusual for restrictions in excess of 6 months to be considered reasonable for any but the most senior of employees and even then it can be questionable. However, notice periods are contractual and can only be reduced by agreement. If there is provision in the contract for enforced garden leave, it is possible to invoke this the moment an employee resigns. As many senior employees will have six month notice periods, even if the duration of their restrictions is reduced by the period of any garden leave, this is a straightforward way for employers to prevent any damaging competition for this period.

Alternative Dispute Resolution

The Lambert dispute is to be determined by the Premier League Managers'' Arbitration Panel. This is just one of a number of ways to a dispute without going before a public tribunal.

For employment matters, ACAS is the most commonly used service. With each tribunal case assigned an ACAS conciliator, contact will be made with each party before any hearing to encourage a private settlement, of which confidentiality is usually a key element As the conciliator will be the point of contact, the parties themselves do not need to communicate with each other.

For more entrenched disputes, formal mediation can be a useful tool. For this, the parties will convene with a neutral third party who will work to bring about agreement. While the parties ultimately retain control of the process, the perspective of a qualified mediator can often be useful for both sides.

The key difference between arbitration and mediation is that any decision by the arbitrators is legally binding on the parties. It is not used as frequently in employment matters, as recourse to an employment tribunal is often cheaper. However, some industries, such as football managers, have established their own arbitration forum which they can revert to. Although some see arbitration as litigation by a different name, it is possible to make it a bespoke process and, importantly, the proceedings are no more public than the parties wish them to be.

Conclusion

It will be interesting to see how the dispute between Lambert and City plays out. However, despite the very public initial snipes, due to it going to arbitration, much of the detail may remain confidential between the parties.

James Hall Associate, Charles Russell

 

Unfortunately his conclusion gives no view on what the outcome may be (sitting on the fence as all such professionals do in print).  I''m concerned that in the first part it goes to the PLMAP - surely they must be biased towards the manager? 

[/quote]

 

Unless I have misunderstood there are two different cases involved in all this, although the outcome of one might affect the outcome of the other, because of the question of whether Lambert was or was not still an NCFC employee. One is what this article is about, which is Norwich City vs Paul Lambert, and vice-versa. The other is Norwich City vs Aston Villa over compensation, which presumably is not being judged by the managers'' panel but by a PL or FA tribunal. And the two tribunals presumably can come to different conclusions over the question of Lambert''s employment status, rather as two different hearings came to different conclusions over John Terry.

[Indy 3,471]

The problem with tribunals is that it''s not always about key facts but down to the panel to decide on the findings and award costs. That''s why most of the time all parties noramlly come to an agreement prior to going this far.

 

We will never know the two parties statments, but the club and Lambert will have to submit their documents and statments to each other prior to tribunal.

 

I''m really not sure why Lambert would be suing Norwich, I have little understadnig of his grievance with Norwich when he claims to have resigned!

 

It will make interesting reading when all this is finally sorted out.

[Nuff Said 5,960]

Sadly, I think I''m none the wiser after reading this. The football (or maybe the wider sporting) world appears to operate on different lines to the rest of us in that contracts seem able to tie employees to their employer for a specfic length of time, with no get out other than by mutual agreement (i.e. payment of compensation, or a transfer fee). Whereas you or I are free to resign from our employment pretty much whenever we like (granted most of us aren''t "senior executives" - but then neither is Ronaldo). If this option was open to footballers they''d all resign and take up new posts as free agents, without a transfer fee being required (but presumably pocketing a signing-on fee instead as a bonus).Possibly it''s the gardening leave aspect which changes this. I guess Lambert is trying to argue that we breached the terms of his contract, therefore he doesn''t have to serve the agreed (12 months?) period of notice. If this is shown not to be true, we could insist he stops working for Villa until his notice period is served - unless they compensate us. Just saying "I''ve resigned" is not enough.

[Jim Smith 2,610]

[quote user="Indy"]

The problem with tribunals is that it''s not always about key facts but down to the panel to decide on the findings and award costs. That''s why most of the time all parties noramlly come to an agreement prior to going this far.

 

We will never know the two parties statments, but the club and Lambert will have to submit their documents and statments to each other prior to tribunal.

 

I''m really not sure why Lambert would be suing Norwich, I have little understadnig of his grievance with Norwich when he claims to have resigned!

 

It will make interesting reading when all this is finally sorted out.

[/quote]

 

He will be suing us as a counterclaim to our actions against him and I am pretty certain he will be doing it on the advice of Villa''s lawyers in order to (i) form part of their defence and (ii) give them a bargaining tool as part of any settlement.

If he doesn;t claim constructive dismissal against us then he/Villa have no defence/case as their entire case appears to be based upon the argument that he was entitled to resign with immediate effect due to us having committed a fundamental breach of his contract through not allowing him to talk to Villa. It appears to me therefore that they/he have no choice but to maintain this line of argument. No fundamental breach = Lambert having to give the requisite notice which I believe is 12 months = us entitled to compensation for breach of that notice period.

I agree with the post above which expresses concern about the matter being heard by the PLMAP. Having looked at a couple of articles about previous decisions they have come to (Curbishley and Keegan) it seems to be implied that the panel has been more willing to reach findings of constructive dismissal than perhaps a court would have been and in both of those cases they found in favour of the managers and awarded them substantial damages. i would be much happier if this was being dealt with through the courts. That said i think i read somewhere that one of the conditions of membership of the premier league is that members are not allowed to take legal action against each other through the courts so i assume we may be obliged to use this arbitration panel to resolve the dispute as a result of our membership of the premier league.

[PurpleCanary 6,384]

[quote user="Indy"]

The problem with tribunals is that it''s not always about key facts but down to the panel to decide on the findings and award costs. That''s why most of the time all parties noramlly come to an agreement prior to going this far.

 

We will never know the two parties statments, but the club and Lambert will have to submit their documents and statments to each other prior to tribunal.

 

I''m really not sure why Lambert would be suing Norwich, I have little understadnig of his grievance with Norwich when he claims to have resigned!

 

It will make interesting reading when all this is finally sorted out.

[/quote]

 

I''m not sure that is true, certainly as far as NCFC vs Aston Villa is concerned. I think normal practice is for the tribunal to issue its ruling and then shortly afterwards release a report that covers all the evidence and the reasons for its findings and the penalties, if any. This certainly happened in the case of QPR fielding a third-party-owned player. From memory the report ran to more than 70 pages.

[Indy 3,471]

Sorry Purple, I meant prior to the tribunal, I do go on to say that it will make interesting reading post tribunal.

 

Having been involved in a couple through work, the solicitors do not just hand over the facts, but sell their clients story behind the facts, this has a major sway in the outcome. Watching people sit a read their statments is like watching amateur dramatics, the three panel members brought into the story rather than the facts. Having seen the company and the worker involved I knew the ins and outs but the outcome made me question the point of such events.

[Yellowfuture 71]

The tribunal should issue reasons either with or subsequent to its decision, unless an agreement is reached, in which case we will be told nothing.

[lincoln canary (& Golden Coppel) 0]

The way Lambert joined Villa was alsmost identical to the way he left Colchester to join us. He resigned from them after our approach was rejected and then joined us. We still ended up paying compensation, and so will Aston Villa. End of.

[lappinitup 629]

[quote user="lincoln canary"]We still ended up paying compensation, and so will Aston Villa. End of.[/quote]No point in further discussion then! [:S]

[PurpleCanary 6,384]

[quote user="lincoln canary"]

The way Lambert joined Villa was alsmost identical to the way he left Colchester to join us. He resigned from them after our approach was rejected and then joined us. We still ended up paying compensation, and so will Aston Villa. End of.

[/quote]

 

That is not quite what happened. Our approach was not rejected; on the contrary, Colchester gave us permission to talk to Lambert, but with the condition that he couldn''t leave until we had agreed compensation. But then Lambert walked out (taking Culverhouse and Karsa with him) before compensation was settled. In that case there was always going to be some amount of compensation paid from us to Colchester. The only argument was about how much. As I understand the Villa case the argument is whether they legally have to pay us anything at all.

[Bill 1,788]

There will be compensation due in regard to the remaining part of Lambert''s contract with us. Ultimately Villa will have to pay, either through Lambert or not.

 

I don''t doubt Lambert''s agent (as will Villa) be aware of how that figure could be reduced if it can be shown that Lambert was constructively dismissed.

 

This will mainly hinge on how long (previously) each party were aware of Lambert''s departure. That knowledge would have guided their behaviour.

 

I would be very surprised if we hear much more '' than the matter has been finalised with an undisclosed figure paid out in compensation'' - or words to that effect.

 

 

 

[Graham Paddons Beard 2,790]

[quote user="PurpleCanary"][quote user="lincoln canary"]

The way Lambert joined Villa was alsmost identical to the way he left Colchester to join us. He resigned from them after our approach was rejected and then joined us. We still ended up paying compensation, and so will Aston Villa. End of.

[/quote]

 

That is not quite what happened. Our approach was not rejected; on the contrary, Colchester gave us permission to talk to Lambert, but with the condition that he couldn''t leave until we had agreed compensation. But then Lambert walked out (taking Culverhouse and Karsa with him) before compensation was settled. In that case there was always going to be some amount of compensation paid from us to Colchester. The only argument was about how much. As I understand the Villa case the argument is whether they legally have to pay us anything at all.

[/quote]

Most employment contracts for senior staff also include clauses against inducing other staff to leave. If such a clause exists, NCFC will contend that PL induced the two coaches to go with him. It would be a pretty difficult case for PL to defend. As I say, this is standard practice in employment contracts (I''ve got one in mine!) but whether the LMA use template contracts without such clauses I wouldnt know.

The Case isnt really against Villa, although another employer can be seen to have cajolled or encouraged a new employee to breach his covenants. The breach of contract is between the two contracted parties ie PL (Employee) and NCFC (Employer). No tribunal would buy that Villa were not aware of the covenants in the contract, there is stacks of case law where new employers have been held that they should take all reasonable steps to reasearch liabilites arising out of the contracts that existed between their targetted employee and the previous employer.

If it is as outlined, PL cannot simply resign, ignore all contractual covenants, and join another employer (and take his staff with him) and not have a strong case to answer. But as I say that is IF it is as outlined above. Dont forget that in all likelihood PL signed new and improved contracts along the way and it is quite possible that certain clauses were drafted in his favour. Burnley-gate was certainly a time when he was in the driving seat. I dont suppose the five hours unscheduled meeting at Carrow Road that day was spent simply drinking tea..

[PurpleCanary 6,384]

[quote user="Graham Paddons Beard"][quote user="PurpleCanary"][quote user="lincoln canary"]

The way Lambert joined Villa was alsmost identical to the way he left Colchester to join us. He resigned from them after our approach was rejected and then joined us. We still ended up paying compensation, and so will Aston Villa. End of.

[/quote]

 

That is not quite what happened. Our approach was not rejected; on the contrary, Colchester gave us permission to talk to Lambert, but with the condition that he couldn''t leave until we had agreed compensation. But then Lambert walked out (taking Culverhouse and Karsa with him) before compensation was settled. In that case there was always going to be some amount of compensation paid from us to Colchester. The only argument was about how much. As I understand the Villa case the argument is whether they legally have to pay us anything at all.

[/quote]

Most employment contracts for senior staff also include clauses against inducing other staff to leave. If such a clause exists, NCFC will contend that PL induced the two coaches to go with him. It would be a pretty difficult case for PL to defend. As I say, this is standard practice in employment contracts (I''ve got one in mine!) but whether the LMA use template contracts without such clauses I wouldnt know.

The Case isnt really against Villa, although another employer can be seen to have cajolled or encouraged a new employee to breach his covenants. The breach of contract is between the two contracted parties ie PL (Employee) and NCFC (Employer). No tribunal would buy that Villa were not aware of the covenants in the contract, there is stacks of case law where new employers have been held that they should take all reasonable steps to reasearch liabilites arising out of the contracts that existed between their targetted employee and the previous employer.

If it is as outlined, PL cannot simply resign, ignore all contractual covenants, and join another employer (and take his staff with him) and not have a strong case to answer. But as I say that is IF it is as outlined above. Dont forget that in all likelihood PL signed new and improved contracts along the way and it is quite possible that certain clauses were drafted in his favour. Burnley-gate was certainly a time when he was in the driving seat. I dont suppose the five hours unscheduled meeting at Carrow Road that day was spent simply drinking tea..

[/quote]

 

GPB, the bit you''ve highlighted in red refers to what I was saying happened in the Colchester case, when Culverhouse and Karsa followed Lambert to Norwich straight away or after an extremely short interval, and certainly before any compensation for any of them had been agreed. The kind of inducement you are talking about seemed likely there. Both in terms of Norwich inducing Lambert, and Lambert inducing his assistants.

But in the Villa case they only joined up with Lambert some weeks later, and with compensation for them having been settled. I''m anything but an expert, but I would have thought it would be harder for NCFC to prove inducement against Lambert in this instance.

[Graham Paddons Beard 2,790]

[quote user="PurpleCanary"][quote user="Graham Paddons Beard"][quote user="PurpleCanary"][quote user="lincoln canary"]

The way Lambert joined Villa was alsmost identical to the way he left Colchester to join us. He resigned from them after our approach was rejected and then joined us. We still ended up paying compensation, and so will Aston Villa. End of.

[/quote]

 

That is not quite what happened. Our approach was not rejected; on the contrary, Colchester gave us permission to talk to Lambert, but with the condition that he couldn''t leave until we had agreed compensation. But then Lambert walked out (taking Culverhouse and Karsa with him) before compensation was settled. In that case there was always going to be some amount of compensation paid from us to Colchester. The only argument was about how much. As I understand the Villa case the argument is whether they legally have to pay us anything at all.

[/quote]

Most employment contracts for senior staff also include clauses against inducing other staff to leave. If such a clause exists, NCFC will contend that PL induced the two coaches to go with him. It would be a pretty difficult case for PL to defend. As I say, this is standard practice in employment contracts (I''ve got one in mine!) but whether the LMA use template contracts without such clauses I wouldnt know.

The Case isnt really against Villa, although another employer can be seen to have cajolled or encouraged a new employee to breach his covenants. The breach of contract is between the two contracted parties ie PL (Employee) and NCFC (Employer). No tribunal would buy that Villa were not aware of the covenants in the contract, there is stacks of case law where new employers have been held that they should take all reasonable steps to reasearch liabilites arising out of the contracts that existed between their targetted employee and the previous employer.

If it is as outlined, PL cannot simply resign, ignore all contractual covenants, and join another employer (and take his staff with him) and not have a strong case to answer. But as I say that is IF it is as outlined above. Dont forget that in all likelihood PL signed new and improved contracts along the way and it is quite possible that certain clauses were drafted in his favour. Burnley-gate was certainly a time when he was in the driving seat. I dont suppose the five hours unscheduled meeting at Carrow Road that day was spent simply drinking tea..

[/quote]

 

GPB, the bit you''ve highlighted in red refers to what I was saying happened in the Colchester case, when Culverhouse and Karsa followed Lambert to Norwich straight away or after an extremely short interval, and certainly before any compensation for any of them had been agreed. The kind of inducement you are talking about seemed likely there. Both in terms of Norwich inducing Lambert, and Lambert inducing his assistants.But in the Villa case they only joined up with Lambert some weeks later, and with compensation for them having been settled. I''m anything but an expert, but I would have thought it would be harder for NCFC to prove inducement against Lambert in this instance.

[/quote]

Interesting Purple, I hadnt appreciated that Compensation for Karsa and Culverhouse had been paid. Doesnt necessarily mean that ultimately NCFC wont use the argument against Lambert (presumably it wasn''t PL that paid the compensation?) but from what you say it looks like such a clause does exisit which is why Karsa and Culverhouse had to sit on their hands for a time. Clearly they were always going to follow Lambert.

PS there is something seriously wrong with my connection tonight and it is typing like an old fashioned teleprinter so apologies for the spelling!