Recent reports in the media suggest that lawyers for Chelsea football club’s former doctor, Eva Carneiro, have issued a claim for constructive dismissal in the Employment Tribunal. This apparently stems from the repercussions following an incident during a match on the 8 August 2015 when Ms Carneiro attended to an injured player on the pitch during Chelsea’s game against Swansea City. But what is ‘constructive dismissal’?
This is a high profile case but the rules will be the same for Ms Carneiro as they would be for anyone who wants to bring a claim for constructive dismissal. Constructive dismissal is a claim based in contract. To be successful, Ms Carneiro will need to persuade the Tribunal that Chelsea breached one or more fundamental terms of her employment contract. It is not clear which terms Ms Carneiro’s solicitors will allege have been breached but her claim is likely to include an allegation that Chelsea breached the duty of mutual trust and confidence it owed to her. This is a term which is implied by law into every employment contract. Employers will be found to have breached this duty where they, without good reason, act in way that is calculated to or likely to destroy the relationship of mutual trust and confidence. Whether this has occurred in the case of Ms Carneiro will, like all claims of this type, depend on the specific facts and circumstances relating to her claim. The burden will be on Ms Carneiro to prove (on the balance of probabilities) that such a breach occurred.
Proceedings in the Employment Tribunal are held in public and therefore if this case goes to a full hearing expect a lot more media coverage raking over the details and the allegations as they are revealed during the proceedings. In reality, most Employment Tribunal claims do not make it to the final hearing as claims are frequently settled or withdrawn before they reach this point. The desire to reach a confidential settlement ‘behind closed doors’ as opposed to having one’s dirty linen aired in public is attractive to most employers but particularly so where the case is as high profile as this one. It may be therefore that most of us will never know the full details of what went on.
It is not clear yet whether Ms Carneiro will bring any other claims. She is likely to bring an unfair dismissal claim which would mean she would almost inevitably claim compensation for, amongst other things, the net value of her lost earnings. Compensation for these financial losses are subject to a legal maximum, which is currently £78,335 or one year’s gross pay, whichever is lower. Despite the outcome of the recent Football Association investigation – which cleared Chelsea manager Jose Mourinho of making discriminatory comments – she may also bring a claim for unlawful discrimination. This would certainly have the benefit of significantly increasing the amount that she would be able claim at an Employment Tribunal, as compensation for discrimination is not subject to the same statutory maximum that applies to unfair dismissal. Of course, claiming compensation and being awarded it are two very different things and Ms Carneiro would need to win her claim(s) before any compensation would be considered. But as mentioned above, it may be that, for one reason or another, her case never gets that far.
James Haley – a solicitor with specialist employment law firm Just Employment Solicitors