After weeks of negotiations, leaks, silence, apologies, smoke and mirrors, it is not surprising that the sparks flying between the ECB and Kevin Pietersen have now been extinguished with the announcement that the player had signed a new four month contract and is “fairly happy to move forward”. Why? Although the legal ramifications of deciding not to renew Pietersen’s central contract were potentially costly for the ECB, there was little substance to the ‘£1million legal threat’, reported in the media. It was not in the interests of either party to go to court.
The dispute between Pietersen and the ECB revolved around his central contract for the 2012 – 2013 domestic and international season. Central contracts have been used by the ECB during the last 12 years allowing it to manage players through the renewal of 12 month fixed-term contracts, which run parallel to the cricket calendar. This setup provides the ECB with the flexibility and certainty of maintaining a squad of top level players, with the option of not renewing individuals at the end of each season, if they are under-performing.
After four years or more of continuous employment under successive fixed-term contracts with the same employer, an employee has the right to benefit from the same level of employment protection as is enjoyed by a permanent employee. With more than half a decade of consecutive central contracts in his kit bag, Pietersen would argue that he should be deemed a permanent ECB employee, entitling him to remain on a central contract unless and until a fair reason for its termination.
After numerous spats during the last few months with the ECB and head coach, Andy Flower, Pietersen was effectively dismissed through his omission from the list of 2012-2013 central contracts announced on 7 September. Historically players have been dismissed due to injury or concerns over performance. But Pietersen was different - coaches and managers were not analysing and scrutinising his fitness and batting average - it was his conduct that was in question.
Misconduct is a potentially fair reason for dismissal. Sending inflammatory messages about colleagues to a competitor gives a strong case to an employer for dismissal on grounds of gross misconduct. Specifically within cricket, players undertake to observe ‘Club Rules’ at all times. These set out the behaviour and attitude required of players. It is probable that, regardless of whether the text messages Pietersen sent were ‘provocative’ or ‘derogatory’, in sending them he breached his contract and dismissal would therefore be likely to be a reasonable sanction in the circumstances, and therefore legally fair.
To be legally fair, however, the employer must also follow a fair and thorough investigatory and disciplinary process. Following the text message revelations, the ECB was criticised for not following a full disciplinary procedure. With a reportedly minimal investigation into the content of the messages and no official disciplinary meetings or written warnings issued during the fallout, Pietersen potentially had an opening for an unfair dismissal claim as a result of the weaknesses in the processes followed by the ECB. Why did he not pursue such a claim against the ECB?
A successful Claimant in the Employment Tribunal has the remedies of reinstatement and/or compensation. Was Pietersen interested in reinstatement? Possibly, but his half-hearted apology suggested otherwise and with limelight opportunities from the Australian Big Bash Twenty20 and Sri Lankan Premier League queuing up at his commentary box, he had other opportunities to continue playing cricket, even if not for England.
The key question is that of compensation. Pietersen is a player who is said to be motivated by money as well as cricketing ambition - his recent $2 million Indian Premier League signing speaks for itself. The Employment Tribunal compensatory award for unfair dismissal is currently capped at £72,300, so Pietersen, who was paid around £250,000 a year by the ECB, may have felt that he would have little to gain in pursuing such a claim. He would both be under a duty to mitigate his loss by finding alternative employment and also would have no guarantee of receiving a financial award from the Employment Tribunal. The employment judge hearing his claim would have to determine whether any award made to him should be reduced to reflect that he could have been dismissed fairly for gross misconduct had that the ECB followed a full and formal disciplinary process. Employment Tribunals are reluctant to compensate individuals where it appears inequitable to do so.
These potential hurdles and financial limits in the Employment Tribunal mean that Pietersen would in fact have been more likely to pursue a claim in the High Court for breach of contract. In this jurisdiction there is no limit on the compensation which can be awarded, so Pietersen would be in a position to recover a more substantial amount for his loss of earnings. Again however, where the court finds a breach of contract has occurred and loss has resulted as a consequence, the Claimant must (as in the Employment Tribunal) demonstrate that he has taken steps to mitigate his losses. As a world class cricketer, Pietersen has not struggled to find other cricketing arenas in which to provide his services, whether on or off the field. His instant success as a TV pundit in Sri Lanka and lucrative IPL contract signing outstrip the earnings from a central ECB contract, therefore mitigating any losses 100% which means that he would be unlikely to be awarded any compensation at all.
So, as England swiftly exit the World Twenty20 in Sri Lanka, the man who divides opinion has concluded his talks with the England team management, has made a full apology, and is poised to return to the England dressing room for the tour to India beginning next month, where the Employment Tribunal and the High Court will doubtless be the last things on his mind.
This article was written by James Froud, Employment Associate and published on www.gsj.com.