Chelsea are having an uncharacteristically poor start in the Premier League this year. Off the field they have also had a number of issues to deal with, perhaps the most controversial of which being the Eva Carneiro case.
It has recently been reported that Ms Carneiro has brought a constructive dismissal claim against Chelsea, but what are the implications of such an action?
Leave Them To Suffer?
On August 8 Chelsea were involved in a tight game at home to Swansea in the Barclays Premier League. Eden Hazard, one of Chelsea's best players, went down apparently injured. The Referee called for treatment and Ms Carneiro and a former colleague, Physio, John Fearn went onto the pitch to treat him. Under the rules of the League, as Hazard had received treatment he was obliged to leave the pitch, reducing Chelsea to nine men, as by that stage they had already lost another player to a red card.
José Mourinho, the Chelsea Manager, was outraged by this and indicated that Ms Carneiro and Mr Fearn needed to 'understand the game'. He then took the decision that Ms Carneiro and Mr Fearn would not be present from that point on match days.
Ms Carneiro, a few weeks later, was understood to have parted company with Chelsea with rumours of a potential employment tribunal claim surfacing in the press.
If Ms Carneiro can show that it was more likely than not that her rebuke and subsequent removal from match days was on the grounds of her sex then she may have a claim for sex discrimination. In particular, as football has been historically a very male dominated game, Mr Mourinho's comments about needing to understand the game could have been regarded as a discriminatory comment.
However Ms Carneiro would likely struggle with such a claim as Mr Fearn, a male physio, appeared to be equally the subject of that comment from Mr Mourinho and was also banned from match days.
It has however recently been reported that Ms Carneiro has brought an individual claim against Mr Mourinho, which would suggest that she has brought a claim of discrimination as it is not possible to bring claims against individuals for constructive dismissal.
It has been confirmed that Ms Carneiro has issued a claim of constructive unfair dismissal.
For Ms Carneiro to succeed in a constructive unfair dismissal claim she would need to be able to fundamentally show the following:
- A breach of an express or implied term of her contract;
- That she resigned because of that breach; and
- That she did not acquiesce to that breach.
Breach of Contract
On the face of it, Ms Carneiro's contract may appear not to have been breached. She apparently did not suffer any loss of remuneration or other contractual benefit and maintained her job title.
However a loss of status can still be held to be a breach of contract. Ms Carneiro was the Team Doctor on match days and present by pitch side, a high profile role. By taking that element of her role away without her agreement, Chelsea were at risk of breaching her contract.
Equally the public comments made by Mr Mourinho about the lack of understanding of the game could potentially be seen as a breach of trust and confidence between the employer and the employee.
Resigning because of a breach
Simply showing a breach of contract however is not enough to establish a successful constructive dismissal claim. Ms Carneiro must also have resigned because of the breach of contract. If for example Chelsea could show that it was more likely than not that Miss Carneiro resigned primarily to take up another role or because she wanted to take a year out in Peru (both hypothetical reasons!) then they could argue that even if her contract had been breached, that this was not the real reason for her resignation and the claim could potentially fail on that ground.
Accepting the breach
Finally Ms Carneiro would need to show that she did not acquiesce to the breach. It is of course unlikely that an employee would confirm in writing that they were entirely happy and agreed with a breach of their contract! However, sometimes an employee's actions can imply that they had accepted any breach of Contract.
The principle way of showing that an employee has acquiesced is by the passing of time. This does not necessarily mean that an employee needs to resign immediately after any such breach, however if the employee does not resign for more than a trivial amount of time after the alleged breach then they would need to show good reason as to why they had delayed in their resignation. Immediate financial considerations and pursuing internal grievance processes can sometimes justify such a delay, however the longer an employee leaves it before taking the decision to resign, the more likely it is that it could be determined that they acquiesced to the breach.
We may never find out if Ms Carneiro has a successful claim against Chelsea as she may elect to settle the matter prior to it reaching tribunal.
The bad publicity that Chelsea has received in respect of the claim and the surrounding circumstances show that employers need to be careful in their treatment of their employees, even if they are not dismissing or intending to dismiss them.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.