Mixed messages on termination and re-hire – it’s just not cricket

Apologies in advance, as this will be a blog mostly focused on cricket. Not being a particularly ‘global’ sport, it may seem a little UK-centric. However, since I am writing partly about the slightly shambolic state of English cricket management, I imagine there may be some small Australian interest. You are welcome, Australia, don’t mention it.

Even if you are not an aficionado who knows your silly fine leg from your sticky wicket, you may well have noticed cricket garnering headlines in recent weeks. The body in charge of English cricket (the “ECB”) has gone through some upheaval: a new Chairman has just taken up his position, the managing director was sacked to be replaced by an allegedly completely different position (though the title remained strangely similar – Director, England Cricket), and this new Director then sacked the national team’s coach seemingly days before the Director himself was actually officially appointed at all.

Anyway, all good stories require a swashbuckling hero. Enter stage right, Kevin Pietersen. Over recent years, he has single-handedly managed to make cricket interesting to the wider public, seemingly deciding that cricket needed him to be its David Beckham. He got the tattoos, the multitude of hairstyles, even the wife who used to be a member of a now distantly remembered pop-group (Liberty-X, for those of you interested). We Need To Talk About Kevin has gone from a novel to a headline.

We are talking about Kevin now because the new Director has told him that he will not be playing for England any time soon. This came after he was unceremoniously sacked (not just dropped) last year, but was then given a potential carrot by the incoming ECB Chairman’s saying that if he showed he was still good at what he does, Pietersen might get another go.

His dismissal last year was cloaked in non-disclosure agreements and attempted secrecy, but enough was publicly known to suggest that the ECB believed Pietersen had been a ‘toxic’ influence and had done a lot of things that annoyed the English game’s hierarchy and management. The word “trust” was the one trotted out to explain why Pietersen would not be ‘recruited’ back to the England team, even though he had put in his CV quite emphatically the day before his meeting with the Director, with a terrific performance for his team.

Reduced to basic principles, a company has told a job applicant, a former employee who performed the job well but was sacked for other reasons, that he cannot have a job for the foreseeable future because he is still not “trusted”. In these specific circumstances, that would be a fair reason to reject the application. That person previously lost his job because of a breakdown in trust and the employer is under no obligation to justify its belief that trust cannot be rebuilt at this time. But while the ECB denied Pietersen the opportunity to play cricket for England in the foreseeable future because of mistrust, with more or less the same breath, he was offered an advisory role with it instead.

So not enough trust to take him on in the role that he wants, but enough to offer him a role that he does not want? Some seriously mixed messages here. There are echoes of Jeremy Clarkson, his contract to present Top Gear ended because of “unacceptable” violent behaviour and yet, as a number of senior figures have made clear, more than welcome to return to the BBC in other capacities. While there are conduct issues which would be relevant to some strands of your employment relationship and not others (e.g. loss of driving licence), it is hard to see either violence or lack of trust among their number. It cannot be right that it is OK for an employee to be violent or mistrusted in one part of his job and not another. There must therefore be a real risk that this taking with one hand and (sort of) offering back with the other could cast doubt on the genuineness of the original need to dismiss.

We have here the added complexity that to the extent that the new Chairman was seriously offering a way back, it was conditional on Pietersen playing good cricket, something he had never had a problem with but also something wholly unrelated to retrieving lost trust. Perhaps even lost trust and confidence can be parked as an issue if that will allow the ECB to field a team capable of beating, well, anyone really.

Obviously none of this is going to get anywhere near an Employment Tribunal, but back in the real world, employers should be careful to avoid mixing their messages in that way. However well intended, offers of some form of continuing relationship (whether employment or consultancy) do not sit comfortably with most misconduct or trust and confidence dismissals and could be a source of considerable embarrassment in the Tribunal.