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Chelsea leaves Carneiro in the blues: the legal position

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About The Author

Helen Morse (Writer)

Helen is studying Law (European & International) LLB at the University of Sheffield, now entering her final year having spent an Erasmus year at the University of Vienna, Austria. Helen is interested in international and commercial law. Outside of law, Helene is a keen sports woman, playing at county level.

Eva Carneiro was one of a disappointingly few female figures in English football, having held the position of Chelsea FC’s first-team doctor since 2011. However, on 22 September 2015 Carneiro made the decision to leave the football club six weeks after a very public demotion and criticism from manager Jose Mourinho. She is now considering whether to take legal action against her former employers. Hypothetically based on what little information we have, what chance does she stand?

The Facts

During the late stages of Chelsea’s first Premier League game against Swansea, Eva Carneiro and head physio Jon Fearn went onto the pitch to provide mid-fielder Eden Hazard with medical treatment. This left the Chelsea side with nine men, as goalkeeper Thibaut Courtois had already been sent off.

In the end the Blues drew 2-2 with Swansea and Mourinho commented that the medical duo had been ‘impulsive and naïve’.

Mourinho told Sky Sports that, ‘I was unhappy with my medical staff….Whether you are a kit man, doctor or secretary on the bench you have to understand the game. You have to know you have one player less and to assist a player you must be sure he has a serious problem. I was sure Eden did not have a serious problem. He had a knock. He was tired.’

In the following week Carneiro had her role within the club significantly changed as part of an internal re-tasking of duties. She was still to remain the first-team doctor, but would not be allowed to attend training sessions, games or enter the team’s hotel. There were also changes for Fearn and he too lost his place on the bench.

Jose Mourinho stood by his criticism of the Chelsea medical staff, despite video evidence showing that the referee beckoned twice to the bench for medical assistance. Under the General Medical Council’s (GMC’s) Good Medical Practice Guidelines, Carneiro was obliged to go onto the pitch when the referee called her and Fearn on. Ignoring the request would have put her in breach of her responsibilities under the ‘Safety and Quality’ domain of the guidelines, which could have put her at risk of having formal action taken against her by the GMC.    

On top of this, Mourinho was also investigated for allegedly calling Carneiro a ‘filha da puta’, Portuguese for ‘daughter of a whore’ after a complaint from a fan. However, on 30 September the Football Association (FA) announced there would be no further action against Mourinho. Having appointed an independent academic expert in Portuguese linguistics, the FA was satisfied that the words used by Mourinho on the touch line did not ‘constitute discriminatory language under FA rules,’ which make reference to the Equality Act 2010. It concluded after careful analysis that the words used by Mourinho were not directed at any person in particular.

In response, Women in Football, a network of professional women working in and around the football industry seeking to challenge discrimination and lobbying for change within the sport, said they were ‘appalled’ at the FA’s decision. The organisation stated that their own language expert ‘made it abundantly clear that the abusive words used by Mr Mourinho on the touchline that day were specifically directed towards a woman.’

The FA also left themselves open to further criticism as it emerged that Carneiro was not called as a witness during the investigation. Not asking Carneiro to give her account leaves the FA’s findings open to doubt as it could suggest only a one-sided inquiry was made. Heather Rabbatts, head of the FA’s inclusion advisory board, broke ranks and said she had ‘major concerns’ over the governing body’s disciplinary process in this case.

The Legal Position

If Eva Carneiro were to pursue legal action against her former employer, it is likely the case would be built around constructive dismissal in relation to a claim for Unfair Dismissal under the Employment Rights Act 1996. Even though Carneiro was not fired by Chelsea FC, under s.95(1)(c) of the Act an individual is still deemed to have been dismissed if the employee terminates the contract by reason of the employer’s conduct, also known as constructive dismissal.

Firstly, however, it is standard practice to establish whether Carneiro is an ‘employee’ of Chelsea FC in order to be able to pursue her claim under the Act. For the purposes of the Act, an ‘employee’ is:

an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment (s. 230 (1)).

A ‘contract of employment’ means a contract of service, either express (whether oral or in writing) or implied. By working for a large organisation such as Chelsea FC where I am sure employment contracts are the norm, I have no doubt Eva Carneiro will satisfy this definition under the Act. It is important to note she still fulfils the definition even now that she has left, as it includes individuals where the employment has now ceased.

Constructive Dismissal

In the case Western Excavations Appellants v Colin John Sharp [1977], Lord Denning stated that an employee is entitled to treat himself as having been constructively dismissed where,

the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

In order to bring a successful constructive dismissal claim, four conditions must be met.

  1. There must be a breach of contract by the employer;
  2. The breach must be sufficiently serious to justify the employee resigning;
  3. The employee must leave in response to the employer’s breach; and
  4. The employee must not delay too long in terminating the contract in response to the employer's breach.

Has there been a breach of contract?

In the case Malik v Bank of Credit and Commerce International SA (In Liquidation) [1998] it was held that employers ‘shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’ This has become an implied term of all employment contracts in England and Wales.

Stripping Carneiro of her match day and training duties, as well as the very public criticism by Mourinho, would have been both disappointing and humiliating for her. To take Carneiro off the bench entirely seems a disproportionate reaction to the incident, especially as it has been generally accepted she was just fulfilling her duties. Couple this with the fact that there are still question-marks surrounding the alleged derogatory comments made by Mourinho, as the FA’s investigation seems less than satisfactory, the relationship Carneiro had with her employer is very likely to have been negatively affected.

It appears Carneiro has a strong case in arguing Chelsea FC have breached the implied term of mutual trust and confidence through Mourinho’s conduct and the club’s re-shuffling of roles following the incident at the Swansea game on 8 August.

Is the breach sufficiently serious?

An objective test is used to determine whether the breach is serious enough to justify the employee resigning. It will be irrelevant whether Chelsea FC genuinely believe the breach is repudiatory or not.

The case of Morrow v Safeway Stores Plc [2002] held that ‘in general terms a finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean, inevitably, that there has been a fundamental or repudiatory breach going necessarily to the root of the contract.’

Therefore, assuming it is found that there has been a breach of the implied term of trust and confidence, Carneiro will have little trouble showing that the breach was serious enough to justify her leaving her position at the football club.

Was the resignation in response to the breach?

The breach does not need to be the sole cause for Carneiro leaving her position, but she must show it was an effective cause for the resignation. However, the fact that she worked at Chelsea FC for six years, and held the same position for four of them, implies that her sudden departure from the club was linked to her treatment since the infamous Swansea draw.

Has Carneiro waived the breach?

An employee must not delay resigning too long otherwise it will be taken that they have waived (accepted) the breach. There are no specific time limits or guidance, it depends on a number of factors such as the employee's length of service, the nature of the breach and whether the employee protested at the change (WE Cox Toner (International) Ltd v Crook [1981]).

More facts surrounding the circumstances of Carneiro’s departure are needed before this condition can be said to be met. That said, Carneiro did leave six weeks after her effective demotion which, given her years of service to Chelsea FC, seems a reasonable amount of time.  

Conclusion

On analysis of the known facts Carneiro would have a strong case in arguing for constructive dismissal. If she were successful she would be entitled to a basic award of damages and either a further compensatory award or reinstatement of her original position.

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Tagged: Commercial Law, Employment Law

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