On 8 February 2012, Fabio Capello’s reign as England manager came to an end when he resigned from his position with the FA over the John Terry affair (for my blog about the employment issues relating to Terry’s charge of using racist language, see here). Although some England players on Twitter, such as the outstanding Kyle Walker and the injured Jack Wilshere, expressed sadness about Capello’s departure, the general reaction in the media - and around the water cooler here at XpertHR - seems to be less sympathetic (“I don’t care”, remarked one non-football fan).
Attention has swiftly turned to the identity of Capello’s successor, with Harry Redknapp the odds-on favourite, particularly after he was cleared yesterday of charges of tax evasion.
If Redknapp’s the person that the FA think is best for the job, then that’s fine (although as a Spurs fan, I hope they don’t). But there has been a longstanding perception that, regardless of the identity of the successful candidate, the FA wants an English manager this time around. This sentiment is expressed in many places by many commentators, but most notably by Adrian Bevington, the FA’s director of communications.
Way back in August 2010, when the pathetic debacle that was England’s World Cup campaign was still a fresh and horrifying memory, Bevington said: “I think the English team should be managed by an English manager in the future”, and that this “is the view in the discussions I have been involved in”.
Bevington’s opinion has been echoed by Twitter luminary Wayne Rooney (“Got to be English to replace him”) and treatment table luminary Michael Owen, who somewhat bizarrely suggested not only that the next manager should be “an Englishman”, but also that this should “run right through the squad from players to tea lady [sic]”.
Putting aside Owen’s radical idea that, in future, foreign players shouldn’t be allowed into the England team, would it be acceptable - in employment law terms - for the FA to require the next England manager (and, if you’re Michael Owen, everyone else) to be English?
The relevant legislation is the Equality Act 2010, which provides protection against discrimination in the employment field, including against job applicants and prospective employees. One of the protected grounds (on which employers must not discriminate) is race, which includes nationality or national/ethnic origin.
I don’t know whether or not the FA have drawn up a job specification providing that (on this occasion) “being English” is a required criterion for the role of England manager. I doubt it. But from Bevington’s quotes above (and I’m sure there’s more evidence for anyone with more time to look for it than I have), it seems pretty clear that the FA is going to appoint an English manager.
If it does and an unsuccessful non-English applicant brought a claim against the FA alleging discrimination, the FA would need to convince a tribunal that being English was an “occupational requirement” for the position, under the Equality Act. To do so, the FA would need to show that:
- being English is a requirement of the job;
- the application of this requirement is a proportionate means of achieving a legitimate aim; and
- the applicant in question was not English (or the FA had reasonable grounds for not being satisfied that the applicant was English).
The last of these steps is obviously straightforward, but I think that the FA would have a hard time meeting the first two. It has previously appointed non-English managers (Eriksson and Capello), and it would be hard to argue that foreign managers in the role haven’t performed as well as English ones: Capello leaves with a significantly higher percentage of wins than any of his predecessors, with Eriksson ranking a respectable fourth.
What else can an English applicant offer over a foreign candidate? I suppose the FA could raise Capello’s well-publicised “language issue”, but that would surely be a dangerous course. I can only think that the FA would have to present some vague argument about how an English manager would understand the English game and culture better than a foreigner, but it would need a lot of work.
All this is somewhat theoretical, of course, because in reality no-one’s likely to claim race discrimination against the FA over the appointment. But I highlight it for two important reasons.
First, to illustrate the legal issues over requiring that a successful candidate for a role be of a certain race or nationality. Second, the question of whether or not it’s desirable for our media, via one of the most important jobs in England (relatively speaking), to propagate the idea that it’s acceptable to restrict jobs to those of a certain race or nationality without a lawful reason to do so.
One thing’s certain - Michael Owen shouldn’t look to HR for a post-football career.
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