Eva Carneiro has submitted a tribunal claim against Chelsea
F.C. for constructive dismissal.
Carneiro was dropped from match-side duties after being criticised by
the Chelsea manager, Mourinho, for going onto the pitch to assist Eden Hazard
during a match in August. She subsequently left the club. In light of Carneiro’s claim against Chelsea
F.C. for constructive dismissal it is a good idea to remind ourselves what
constructive dismissal is.
Constructive dismissal occurs where an employer commits a
serious breach entitling the employee to resign in response to their employer's
conduct. The employee is entitled to
treat themselves as dismissed, even though they resigned. The three elements of
a constructive dismissal are:
1. A breach by the employer
The breach needs to be fundamental – i.e. one that goes to the root of
the employment contract. Examples of a fundamental breach include significantly
varying an employee’s contract without their consent and not treating an
employee in a reasonable manner as part of the employer’s duty to preserve the
relationship of mutual trust and confidence.
2. The employee must resign in response to the
breach
The breach could be one standalone act or a series of acts such that the
last act is the “last straw”, justifying the employee’s resignation.
3. The employee must not wait too long after
the breach to resign
The employee needs to show that they have resigned in response to the
employer's breach. If there is a lengthy
period between the breach and the resignation, this can be harder to establish.
A short delay between the breach and resignation does not necessarily indicate
that the employee accepts the breach. However if the delay is prolonged it can
be evidence that the employee has accepted the breach and therefore a claim for
constructive dismissal cannot be made.
Although we do not have specific details of Carneiro’s
claim, it has been reported that Mourinho accused Carneiro of being “impulsive
and naïve” and that she failed to “understand the game” when she went on to the
pitch to treat the injured player. It may be that Carneiro intends to argue
that she resigned from her job after being reprimanded by her immediate
superior and that Mourinho’s behaviour together with her withdrawal from
match-side duties constituted a breach of trust and confidence that went to the
root of her contract.
It will be interesting to see how this claim unfolds in the
coming weeks.
Emma Clements
