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The Special One v The Constructively Dismissed One?

BY Paman Singh
Employment Law & HR
BG Purple

The back pages of the press have now spilled over to the front pages, at least where José Mourinho seems to be concerned.

The embattled Chelsea manager has found himself at the centre of an employment law furore which is perhaps not his forte.

In August, Mourinho bizarrely criticised team doctors Eva Carneiro and Jon Fearne for running onto the pitch to treat star player Eden Hazard who was lying stricken on the ground. It came during a period in the game when the opposition were attacking and Chelsea were already playing with reduced numbers due to a player being sent off. Mourinho was seen to gesticulate wildly at the pair and after the game dubbed them naïve in his media interviews. In addition, Dr Carneiro found herself demoted and was no longer on the team bench for matches.

Following this very public dressing down, Dr Carneiro resigned from her role as club doctor and has now brought a claim against Chelsea FC. Her claim is for constructive dismissal, that is, where an employee believes that they have no other viable alternative but to resign, due to a serious breach of their employment contract which they do not accept.

When dealing with an employee and you are considering demotion as an option, remember the following general pointers:

  • Demotion for a minor mistake can be a sufficiently serious breach of contract by the employer. For example, the demotion of a Christian employee for posting on Facebook (yes, yet another social media case!) that he felt same sex marriages in church were a step too far was held to be a breach of contract.
  • A ‘demotion’ need not even be a demotion. If an employer changes the job role of an employee so radically that it feels like a demotion, then there is no need to show a cut in pay or to formally state that the action is a demotion for it to amount to a breach of contract.  
  • Demotion can be construed as discriminatory. For example, case law has shown that demotion upon return from maternity leave was HR.  Employers should be aware that if they are considering demotion, it ought to be because of poor performance or misconduct, as opposed to for any discriminatory reason or for working part time due to child care commitments.
  • Demotion is not a regular disciplinary outcome. The ACAS code specifies written warnings, final written warnings and dismissals as normal sanctions. In order to demote, there either needs to be provision for this in the employment contract, or acceptance from the employee. For example, if an employer deems misconduct to be worthy of dismissal, they could offer demotion and the employee could accept this, rather than dismissal. If you are considering this option, then it’s wise to contact us as this can be a complex area of law.

It seems as though things are looking gloomy for José just now, and he could do with a) advice from LAW b) selecting this writer in his starting XI!

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