[UPDATE: 7 June 2016 -José Mourinho has now admitted using the words ‘daughter of a whore’ when Dr Carneiro entered the pitch in August 2015].

One of the UK’s more hotly anticipated legal battles of 2016 will take place in rooms overlooking a Lidl’s car park in Croydon.

The South London Employment Tribunal is far from picturesque, but the unglamorous surroundings are perhaps a fitting backdrop to a dispute that has cast a long shadow over Premier League football’s former champions and their embattled ex-manager, José Mourinho, who may be required to appear in person at the final hearing.

If the case does not settle beforehand, at some point, possibly by the summer, an employment Judge and 2 lay panelists will decide whether Dr Eva Carneiro was unfairly constructively dismissed by Chelsea, and whether José Mourinho discriminated against her by his words and/or conduct.

The facts

In August 2015, during the opening match of the season between Chelsea and Swansea, the referee waved Chelsea’s medical staff onto the pitch at Stamford Bridge during extra time to treat the Chelsea striker, Eden Hazard. As a result, Hazard left the pitch, leaving Chelsea with only 9 men at a potentially decisive point in the game. Mourinho was infuriated and vented his dissatisfaction with Chelsea medical staff on the pitch and in the post-match press conference.

Mourinho then effectively demoted Dr Carneiro by banning her from training sessions, matches and entering the team hotel.

Dr Carneiro left her post in late September 2015.

An investigation by the Football Association cleared Mourinho of using abusive language towards Dr Carneiro on the pitch, but the FA has been criticised for (among other things) not interviewing Dr Carneiro. Mourinho’s exact words are still in dispute.

The issues

Dr Carneiro is claiming constructive dismissal against Chelsea and has brought a separate, though linked, action against Mourinho for discrimination and victimisation.

Constructive dismissal

This happens when an employee brings an end to their contract of employment because of the conduct of their employer.

Most claims concern a breach of the implied term of trust and confidence in every employment contract, although breach of an express term is also sufficient.

The well-established legal test for breach of the implied term of trust and confidence was articulated in the case of Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 and may be summarised as:

Whether the employer, by its conduct, acted without reasonable and proper cause in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

In practice, this is a very high test to meet and the conduct must amount to a fundamental breach of contract.

The language is strong for a reason. If compensation were awarded for constructive dismissal on the basis of mere unreasonable conduct by an employer, the UK economy (and more importantly the employment tribunal system) would be overwhelmed.

So the law requires more than that: the conduct must be unjustified and either designed or likely to “destroy or seriously damage” working relations with the employee.

The tribunal considers this question holistically and where conduct takes place over time it evaluates the cumulative effects.

If the breach of an implied (or express) term of the contract is established, there are a number of additional hurdles to get over. The employee must leave in response to the breach and not for any other, separate reason. And, importantly, if the employee waits too long before terminating the contract then the tribunal may conclude that the employee has waived her rights to bring the contract to an end.

Discrimination and victimisation

These claims against Mourinho rather than Chelsea raise quite a wide range of distinct issues under the Equality Act 2010. It is not clear yet whether Mourinho will be defending these claims, so I will discuss them at a later date.

Conclusion

Putting aside the allegation of foul language, which may well require expert evidence to resolve, from what we know already, a key issue in the case against both club and ex-manager seems to be whether the demotion was justified, in context. In other words, whether or not the medical staff’s decision to treat Hazard on the pitch at that point in the match was appropriate medical practice in a professional football match.

If it was appropriate, then it seems there can be little justification for the demotion.

If it was not appropriate, a tribunal would then have to consider whether demotion was a reasonable sanction, or whether the club went too far.

As ever, these cases are fact-sensitive and much will depend on the evidence and argument presented by both parties. It would be unwise to make any predictions, so for now, all bets are off.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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