Employers should take note of the handling of Nalbandian

The defaulting of David Nalbandian in the  final of  the Aegon Championships at the Queens Club was one of the big sporting headlines of the weekend. Having watched the footage of Nalbandian kicking the advertising hoarding into the shin of the line judge I think that they had little alternative but to default him and award the match to Marin Cilic. The rules are clear with our very own Tim Henman was defaulted for similar reasons early in his career when he hit a ball girl with a tennis ball while smashing it away in a fit of pique and Serena Williams being defaulted in the 2009 US Open semi-final due to her abusing a line judge.

The purpose of this rule is to act as a deterrent against players abusing umpires and line judges. Employers also have a similar obligation to protect their employees in that they owe them a duty of care, including to provide them with a tolerable working environment. The case of Horkulak v Cantor Fitzgerald made it clear that an employee could successfully claim constructive dismissal if their working environment had become intolerable. In the Horkulak case the claimant resigned due to the behaviour of his line manager who constantly used foul and abusive language but the principles of the Horkulak case could similarily apply if a third party, such as a customer, was behaving in an intimidatory or offensive way towards the employee and the employer took no steps to prevent it.

There is also specific legislation within the Equality Act to protect employees from 3^rd party harassment if it is on the grounds of one of the “protected characteristics” (e.g. race, sex, disability etc.) If a third party harasses an employees in such a way (e.g. racially abuses them) and the employer is aware of this harassment but fails to take steps to prevent further harassment then if there are a further two instances of harassment then the employee can make a claim against the employer.

Employers should therefore follow the example of the ATP and ensure that their employees are protected from the unacceptable actions of third parties as if they do not do so they could leave themselves open to claims of constructive dismissal or harassment - particularly if a rather irate tennis player comes onto the premises.  

Some happier tennis players!