Whilst Jose Mourinho wanted to be concentrating on his new role at Manchester United, on Monday he was instead facing the prospect of a very public washing of dirty laundry from his old role as manager at Chelsea FC, when Eva Carneiro brought her claims for constructive dismissal, sex discrimination and victimisation against both Chelsea FC and Mourinho to Croydon Employment Tribunal.
What was supposed to be a two week hearing settled yesterday afternoon, despite the fact that the former Chelsea first team doctor had already turned down a settlement offer of £1.2million before the case came to court.
Whilst the media headlines may have focused on the finer points of Portuguese swear words and whether Carneiro was seeking to promote her own public profile at the expense of the former Chelsea manager and the club, we at citrusHR have taken a look at some of the headaches for employers that lie behind these headlines.
What is constructive dismissal?
Eva Carneiro resigned from her job as a doctor at Chelsea FC, but was seeking to make a claim for unfair dismissal based on her having no other realistic option but to resign. This is called constructive dismissal but is generally not easy to establish.
In order to succeed she would have had to prove that she was treated by Chelsea FC in such a way that they fundamentally breached her contract, and in particular the implied term in all employment contracts of a relationship of mutual trust and confidence between employer and employee.
Eva Carneiro was claiming that she was effectively demoted after the now famous incident of Mourinho shouting at her after she went onto the pitch to attend to a suspected head injury of Eden Hazard during the match against Swansea City last August, at a time when Chelsea were already down to 10 men on the pitch. Following that match Mourinho is supposed to have said that she couldn’t work with the first team again but only the academy team or the ‘ladies’ team, hence the demotion.
She also claimed that there were a number of other factors after this incident that meant Chelsea were not acting fairly in investigating her complaint, leaving her no option but to resign.
If you find yourself with a disgruntled employee who resigns, beware of the possibility that they could seek to make this sort of claim – their resignation may not be the end of it. It is very important, if you are having to take action against that person, that you follow your own disciplinary procedures when doing so.
What counts as demotion?
A demotion is some sort of reduction in the role of an employee – either moving them to another role which is more junior than the one they held before, or reducing their responsibilities within their existing role.
Some disciplinary procedures specify demotions as a possible sanction, however, if your disciplinary procedure does not include this then you can’t do it.
We don’t know if the Chelsea Disciplinary Procedure makes reference to demotion, but it is also very difficult to see what Eva Carneiro could have been considered to have done wrong in this instance, especially as she appears to have followed the protocols of her job in attending to an injured player on the pitch. If the demotion (or ‘adjustment’ as Chelsea sought to describe it…) was because of a personality clash with Mourinho, then that would be very unlikely to justify demotion on its own.
How can Carneiro bring a claim personally against Mourinho?
Most employees make discrimination claims against their employers. They are usually the best option because of the company’s responsibilities towards the employee and their means to pay compensation or provide other remedies such as re-instating the employee in their former job.
However, it is open to an employee to seek to make a claim specifically against another employee, if that employee’s alleged conduct has been so fundamentally wrong that it is fair to make an individual claim against that person. This can be done where the other employee is more likely to be able to pay compensation, and also, as here, for maximum embarrassment of the individual concerned.
How do you as an employer investigate these sorts of claims?
Lawyers acting on behalf of Carneiro on the first day of the hearing characterised the incident as a ‘bad’ employee forcing a ‘good’ employee out of the job of her dreams and doing nothing to stop it. Specifically they alleged that
‘…rather than investigating and disciplining the bad employee, the employer allows the bad employee to confirm demotion… and to continue with his job.”
And this was in spite of the fact that Carneiro apparently received a text supporting her actions on the pitch that day from the club’s Director – Marina Granovskaia.
There was even a supposedly independent investigation into the incident by the Football Association, concentrating on the language used by Mourinho on the side of the pitch, but it appears this investigation was concluded without ever interviewing Eva Carneiro about her side of the story.
Employers have a responsibility to investigate complaints thoroughly, which means talking to all of the employees concerned, and if need be challenging any strong but wrong opinions. Whether you are a senior or a junior employee, you have a right to expect that your employer will show the same attention to detail and respect for company procedures.
Disciplinary procedures again are key.
When carrying out an investigation like this, it is important to make as many written notes as you can at the time of what you find, making sure you don’t exaggerate or put in rash opinions that could come back to haunt you!
Emails, texts, and social media – can you control them?
The Chelsea FC Director’s email telling Eva Carneiro ‘you did nothing wrong’ was very damaging to Chelsea’s defence of Eva Carneiro’s claims. Equally Carneiro herself is accused of breaching Chelsea’s communication policy by secretly talking to the media without her employer’s permission.
There are so many channels of communication today that it is difficult for an employer to monitor all of them, and employees will inevitably make reference to work in private messages between friends. It can be a minefield for any employer to know how best to set a company policy in this area and then how to enforce it.
But as you can see from the facts of this case, it is well worth trying to have a robust Social Media Policy in place (usually as part of your staff handbook) making it clear to all employees what they can and cannot post about your business, and to make sure that they are fully aware of it.
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