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Lessons from Chelsea - Mourhino & Constructive Dismissal

You can’t have missed the enormous press coverage of Eva Carneiro, the former Chelsea Club Doctor, who is suing both Jose Mourinho personally and Chelsea football club for constructive dismissal. What does ‘constructive dismissal’ mean and how can employers protect their businesses and themselves personally from similar claims? 95% of small businesses do not adequately protect themselves from discrimination claims and in this article we’ll show how, with some simple and quick steps, this can be done.

On August 8th Eva Carneiro went onto the pitch to treat a Chelsea player after being called by referee Michael Oliver. Because of the treatment Chelsea were down to 9 men. Mourinho was scathing in his criticism of Carneiro and described her actions as impulsive and naive. Carneiro was absent from the bench after this, the first game of the season, and is now working elsewhere.

Carneiro has now filed a constructive dismissal claim and is alleging, we believe, discrimination, presumably on the grounds of Mourinho’s thus far unreported detrimental treatment of her on grounds of her sex. Constructive dismissal comes about when an employee, Carneiro in this case, regards herself as having been dismissed as a result of her employer’s actions.

Here we might assume (and it is only an assumption at this stage) that Carneiro will allege that she was unable to take her seat on the bench because Mourinho prevented her from doing so and as such (and together with his known and thus far unknown comments) has prevented her from carrying out the role she was employed to do, and as a result she feels herself to have been dismissed. It’s too early to speculate on the where the discrimination aspect comes from, perhaps Mororinho has not taken such a tough line with the head physio (who is a man and was also on the pitch with Carneiro that day and received the same criticism from the manager at the time) or perhaps it has something to do with some other comments or treatment we don’t know about yet.

The fact that discrimination has been alleged though means that Mourinho has personally cited as a respondent in the case, something that is only possible in cases of discrimination and victimisation. As a result the employee’s legal action targets Chelsea Football Club (the employer and thus liable for the discriminatory acts of its employees, including its Football Manager) and the Football Manager himself as it is his behaviour that she will allege was instrumental in the constructive dismissal. If she wins her case the employment tribunal may decide to award compensation against both the club and Mourinho personally.

Leaving behind the sensational world of football, how could this case relate to ordinary businesses? Following the same principles, let’s suppose Company owner ‘A’ employs a manager called ‘B’, and also has a female employee, C. Unbeknown to A, B treats C badly because she is a woman, and B has a problem with women. Eventually C resigns and brings a constructive dismissal case against both B and A. The tribunal finds in C’s favour and makes an award of £20,000, half of which is levied against B and half against A.

Even though A knew nothing of B’s behaviour, the tribunal have awarded £10K against A and there is reputational risk too, since tribunal proceedings are open to the public. They did this because they believed that a reasonable employer would have taken steps to have prevented B’s behaviour in the first place, and could not find any evidence that A did so.

So what should A have done? Here are our top tips:

  • B’s employment contract should have stipulated that discriminatory behaviour was in breach of A’s Company policy
  • The contract should have cross referenced a ‘Dignity and Work’ Policy and Equality Policy, which as well as educating employees (C) and managers (B) on A’s expectations would have told C how to raise a complaint
  • A should have been able to show that B had received a copy of the policy and the employment contract (a signed acceptance would do) to prove that B should have known not to treat C in the way that he did

Whilst the above might have been sufficient to have protected A from liability, the icing on the cake may have included A providing some training on discrimination, or simply emailing his employees (including B) every now again a reminder of the standards expected at work – and kept copies to show the tribunal.

Had A followed the steps above (and indeed if Chelsea FC have done) then A would have (and Chelsea may be able to) successfully pleaded a ‘due diligence’ defence i.e. that it had gone to reasonable efforts to ensure that B (Mourinho) would not behave in a discriminatory way.

Regrettably the vast majority of small business owners do not follow these steps (which take very little time, less if they have an HR Company to do it for them) and so are vulnerable to claims from employees that could easily be rebutted.

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