Could Ademola Lookman take legal action over Atalanta coach’s criticism?
Footballer Ademola Lookman found himself at the centre of a storm this week when his Atalanta coach publicly derided his penalty taking skills. But did Gian Piero Gasperini go too far? Lawyer Chris Deeley explores the case.
We all make mistakes at work occasionally. Sometimes, we are also unlucky enough to have our bosses call us out on our mistakes. However, most of us will thankfully never experience a boss going to the press to tell the world exactly how badly they think we have done our jobs.
That’s what happened to former Premier League footballer Ademola Lookman this week. His team, Italian club Atalanta, crashed out of the Champions League losing 5-2 to Club Brugge, with Lookman missing a penalty.
After the match, Atalanta manager Gian Piero Gasperini was highly critical of Lookman in a press conference, calling him one of the worst penalty takers he had ever seen.
Nigeria international Lookman – who was born in London and previously played for Everton, Fulham and Charlton Athletic – has since issued his own statement saying it was “disrespectful” to be singled out for what he felt was unfair criticism.
Aside from arguably being unprofessional and ill-judged, can there be bigger legal consequences for employers for publicly criticising employees?
One possibility is that the employee could bring a claim for constructive unfair dismissal, assuming they have accrued two years’ service. In short, this involves an employee resigning on the spot, because their employer has breached their employment contract so seriously that the employee is entitled to treat the contract as having ended.
In most cases, constructive dismissals involve a breach of the mutual duty that is implied by law into all employment contracts, for both employer and employee to maintain trust and confidence in one another. This implied duty is so fundamental to the employment relationship that any breach of it will be considered repudiatory, i.e. entitling the employee to treat themselves as constructively dismissed.
Case law has also established that an employee being rebuked publicly or in front of customers can be a breach of this implied duty, even where the criticism is largely factually accurate. As such, employers should be very careful about publicly commenting on employees’ performance, and certainly using open critique as a motivational tool should be avoided.
Could Lookman sue for defamation?
In extreme scenarios there is also the risk of an employee raising a defamation claim. This already happens occasionally around references, where in the past some employees have successfully sued former employers for giving inaccurate negative references which have cost them future work opportunities.
This does not restrict accurate criticism from being given in a targeted reference – truth is a defence to defamation claims – but in the case of Atalanta and Gasperini even this would be a stretch since Lookman had scored all four penalties he had previously taken for the club – hardly “worst ever” territory.
Of course, even though English football clubs are subject to the same laws as any other business, football rarely runs on the same considerations as “normal” employers.
Part of that is due to the money involved – for example in England the current statutory cap on unfair dismissal compensation is £115,115 – less than three weeks’ reported wages for Lookman. This makes litigation fairly unappetising, especially as constructive dismissal requires the employee to resign and sacrifice their income stream.
Opportunities in top-level football are also scarce and so being seen as a “troublemaker” or a risky investment, even unfairly, can be fatal to a career. Without a major escalation, then, it doesn’t seem like a lawsuit between Lookman and Atalanta would suit anyone – except for the lawyers.
Chris Deeley is an employment associate at full-service law firm JMW Solicitors in London.