Even if you have no interest in football, it would have been difficult to avoid hearing about the recent treatment of Chelsea Football Club’s first team doctor, Eva Carneiro, by the team’s manager, Jose Mourinho.
The original incident happened when she was summoned onto the field by the referee to treat one of the Chelsea players, an action which the manager clearly did not agree with, leading him to accuse her of not understanding the game. It has been reported that following the incident, she has been removed from first-team duties, essentially a demotion. Apparently Mourinho has said that he has been considering limiting her first-team duties for some time now because he was concerned that the dressing room dynamic was affected by the presence of a female. It was also reported that a Facebook post she wrote, thanking fans for their support also played a role in the decision to demote her. She posted: ''I would like to thank the general public for their overwhelming support. Really very much appreciated.''
It has further been reported that she is seeking legal advice about what claims, if any, she could issue against the club in respect of the demotion and the way she was publicly treated by Mourinho.
What claims, if any, could she bring?
- Constructive dismissal – there is a term of mutual trust and confidence implied into all contracts of employment, which states that "the employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee". The way in which Eva was publicly criticised by Mourinho and, if it is true, that he swore at her, could be enough to amount to a fundamental breach of this implied term. It is difficult to see how Chelsea could argue that there was reasonable and proper cause for Mourinho’s conduct when Eva was complying with her professional code of conduct in putting the needs of her patient first.
- Sex discrimination – if it could be proved that Mourinho’s comments would not have been directed at a man and her demotion was indeed because she is a woman, Eva may be successful in a claim for direct sex discrimination. If she can show that Mourinho violated her dignity and/or created an offensive environment for her due to her sex, she could also have a claim for sex-related harassment. In discrimination claims, it is possible to bring the claim not only against the employer but against the individual perpetrator as well, so Mourinho could find himself facing a claim against him personally as well as the football club.
Could Chelsea justify its actions against Eva Carneiro?
Where an employee does not follow the reasonable instructions of a manager, the employer can usually take disciplinary action against the employee but only after following the correct disciplinary procedures, including an investigation, hearing and appeal. In order to take action as serious as demotion, this must be clearly set out in the disciplinary policy and usually there will need to be a right to demote in the contract of employment, otherwise the employer risks committing a fundamental breach of contract.
It is interesting that Eva’s comment on Facebook also allegedly contributed to her demotion. Whilst it is possible for an employer to take action against an employee for comments made on Facebook about the employer, in order to justify serious disciplinary action the employer would need to show that the comments were derogatory or likely to bring the employer into disrepute. Most of the recent case law around serious disciplinary action, such as dismissals, for making comments on Facebook has emphasised the need for the employer to have a comprehensive social media policy setting out what type of behaviour is and is not acceptable and the consequences of such behaviour. It is possible for an employer, particularly a high profile employer such as here, to have an outright ban on making any comments on social media. If this is the case, the employee would be in breach of the policy by making any comment, without the need to consider whether it was derogatory or likely to bring the employer into disrepute.
What about Mourinho?
In a normal employment situation, if a manager was found to have discriminated against another employer employee or to have treated them inappropriately, for example, by swearing at them or publicly criticising them, the employer could potentially bring disciplinary proceedings against the manager but as this is the world of football and Mourinho is, well Mourinho, this is highly unlikely to happen.