How can you make a footballer redundant without closing down the football club?

That was the question that came to mind when I read that Trevor Birch, the administrator for Heart of Midlothian FC, had made striker John Sutton redundant and that four other players from the club could follow suit.

In English employment law, it isn’t the employee who becomes redundant; but the post they hold: you can’t make somebody redundant and then employ somebody else to do the same job on a lower wage.  That’s English law, but Hearts are a Scottish club based in Edinburgh and playing in the Scottish Premier League; so Scottish law applies.

Fortunately, the Employment Rights Act 1996 extends (for the most part) to Scotland! So the same law about redundancy that applies in England applies equally in Scotland.

Section 139 of the Act specifies the two conditions under which a person can be made redundant:

The first of these, section 139(a), covers the scenario where an employer has either ceased to trade, or intends to cease trading; or if he intends to cease doing business in the place where the employee was employed.

This condition does not appear to apply in the case of “the Hearts’ Five” because the administrator is striving to sell the club as a going concern and there has been no announcement of a plan to move the club from its Tynecastle stadium.

The administrator is encouraging fans to buy season tickets and he has thanked a commercial sponsor for bringing forward their payment for next season’s sponsorship fee, saying: “All these gestures have played their part in keeping the club afloat and giving it a lifeline.”

This does not sound like there is an intention to cease trading; unless the administrator’s intention is that the present company behind the club, Heart of Midlothian PLC, will cease to trade when new owners purchase the assets through a new or different company.

The second of the two conditions, section 139(b), is more interesting. This applies where the requirements of the business are such that the employer no longer requires employees to carry out work of a particular kind, whether that is at all or just at the place where the employee was employed.

I don’t think that anybody would seek to suggest that Hearts no longer requires employees to carry out work as professional footballers!

But Heart’s website lists 22 first team players (I don’t know if the list is up to date, but John Sutton’s name isn’t amongst them). It could be argued that the club didn’t need as many footballers in order to carry out their business; or it could equally be argued that they didn’t need as many of the same type of footballer.

Of the 22 players listed on the club’s website, five are strikers: Dale Carrick, Callum Paterson, Billy King, David Smith and Scott Robinson; so it is quite possible that the administrator no longer needed six strikers to carry out the business of the football club.

If John Sutton has been made redundant under this condition, the club (or rather its administrator) would be unable to sign another striker because doing so would demonstrate that the company did need an employee to carry out this type of work: the redundancy would then be unlawful dismissal.

Of course, circumstances change; and this does not preclude the company from signing another striker in the future should other players leave or if one of their remaining strikers receives an injury.

Redundancy isn’t fun for anybody – employees or employers. Fortunately, in this case, John Sutton wasn’t unemployed for long. STV reports that within hours he had returned to his previous club Motherwell.

The player told Motherwell’s website: “It’s good to be back, good to see some familiar faces and there’s a lot to look forward to. I wasn’t desperate to leave here last time and I was glad for the opportunity to come back again and work with the manager and the staff who always made me feel welcome any time I returned.”