Introduction
The official completion of Sir Jim Ratcliffe’s 27.7% buy-in at Manchester United Football Club took place this February.
Last month, taking account of the end of the Premier League season, it was widely reported that the newly appointed co-owner gave his (approximately 1,000) staff an ‘ultimatum’: an early payment of their annual bonus on the basis that they resign by the 5th of June if they do not want to follow Sir Jim’s new compulsory office working approach.
Dai Sheppard, Myles Thomas and Sophie Evans explore some of the potential legal implications of setting staff ultimatums to return to work or leave, and whether this perceived measure of productivity could lead to complications down the line.
The ‘ultimatum’
The 13-time Premier League winning team club has made it compulsory from the 1st of June for staff to work from the club’s offices in either Manchester or London. The club has removed the option of home working for employees.
It is understood that employees were informed by email on the 28th of May that anyone not wishing to conform to the new office working approach, can resign and claim an early bonus for the season.
The offer stands for those who also work exclusively from the offices but may prefer to take the opportunity to leave with a payoff. The bonus will be paid in September and could amount to four-figure sums.
The Club has taken this productivity-based decision as it believes office working will bring “substantial benefits for individuals, teams, and the wider club and support [its] journey to return Manchester United to footballing success.”
What are the potential legal implications?
A Manchester United spokesperson denied that Sir Jim’s offer is a voluntary redundancy programme. The Club’s representative has also suggested the offer is down to the Club recognising that not all employees wish to work from the office full‑time, and so the Club has provided options for staff who don’t wish to return to the office to step away now. Despite this, there may be adverse legal implications from adopting this approach.
Constructive unfair dismissal
Under s.95 Employment Rights Act 1996, an employee who has surpassed two years of service can bring a constructive unfair dismissal claim if they felt they had no alternative but to resign promptly in response to an employer’s fundamental breach of contract.
The Club’s ‘ultimatum’ could pose a risk for these employment law claims. If Sir Jim’s offer is determined to have created a ‘no reasonable alternative’ feeling amongst employees, its construction could provide a potential basis for constructive unfair dismissal claims. This is especially the case where home working is now the long-established norm for certain employees – this could be expressly stipulated in their contracts of employment, verbally agreed or it may be deemed to be an “implied term” based on regular ways of working since the pandemic. Even if their contract permits a full-time return to the office, the short notice in instructing them to return full time could also potentially amount to a breach of the implied term of mutual trust and confidence, particularly if they have relocated to areas outside daily commuting distances from the office based on being permitted to work from home and have insufficient time and support to adjust their living arrangements.
Discrimination
Under s.4 Equality Act 2010, there are nine protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
The Club’s ‘ultimatum’ even if it is permitted under an employee’s contract, could still pose a risk for discrimination claims. It is important that employers carefully consider the impact of workplace policies on all employees, ensuring that any requirements are necessary and proportionate to the needs of the business and does not disproportionately adversely impact employees sharing a particular protected characteristic. It is proven that flexible working arrangements accommodate various employees, such as those with childcare responsibilities who may be disproportionately female, and can amount to reasonable adjustments for disabled employees if that role can be effectively performed at home, and they are disadvantaged by working wholly in the office due to their disability.
By way of example, indirect discrimination occurs when “a policy which applies in the same way for everybody has an effect which particularly disadvantages people with a protected characteristic. Where a particular group is disadvantaged in this way, a person in that group is indirectly discriminated against if he or she is put at that disadvantage, unless the person applying the policy can justify it.” There are risks if an employer imposes a blanket ‘one size fits all’ approach to office working unless it can be objectively justified. There may well be employees willing to take the Club upon its bonus offer, but it may not be so straightforward for others.
It is yet to be seen whether United will take any punitive action for those employees that refuse to comply with the requirements to return to the office, but disciplinary or dismissal action could also lead to claims like unfair dismissal, as well as discrimination claims, if it cannot be shown that the return to work is a reasonable instruction by the employer and following the express and implied terms of their contract of employment.
If you need advice on managing such issues in your workforce or dealing with flexible working requests, get in touch with our Employment Team for expert advice.
