I thought that Jose Mourinho had been put on this earth to provide Hugh Dennis with material since Dennis is no longer able to do his Saville inspired “Showaddywaddy”.
Instead he has given a chance to share an opinion on employment law from Gateley plc in the wake of a falling out with the Chelsea club doctor. Lessons for all business owners and employees here. I doubt that it will bother the man who can’t decide on how he wants to be known.
One football news story that has refused to go away this week is that involving the public rebuke given by Chelsea manager Jose Mourinho to club doctor Eva Carneiro followed by a demotion by removing her match day duties. The manager’s actions have been widely condemned by both football and medical experts.
No matter what mistake the employee has made, everyone in HR knows that shouting at an employee in front of others is not the right course of action.
The issue should be dealt with in private. It might be that it is a conduct issue which needs to be dealt with in accordance with the disciplinary policy, or it might be that a performance management process should be followed. Of course it might also be that just a quiet word is needed to let the employee know that they have done something wrong.
Of course we do not know the full details of what went on at Stamford Bridge however, in general what are the potential consequences when a manager does lose his temper and lets loose on an employee? Can a demotion be challenged when there has been no apparent process?
Constructive dismissal has been mentioned in some press reports. This is where an employee is treated as being dismissed in circumstances where they have resigned as a consequence of the employer’s conduct.
In any constructive dismissal claim the first hurdle is to show that the employer’s conduct amounted to a fundamental breach of the contract. An employee who has been shouted in front of other employees is likely to establish that this amounts to a breach of the implied term to maintain mutual trust and confidence. The removal of key duties amounting to a demotion without any formal capability process would be likely to add to this breach.
The next question in whether this conduct played some part in the employee’s decision to resign?
The employer’s conduct does not have to be the sole reason for the resignation but it must have been one of the reasons. An employee who resigned citing the manager’s behaviour and the
impact of any demotion would be likely to be able to establish that this conduct was the real reason for quitting their job.
The third question, which tends to cause the most litigation, is whether the employee has left it too late to resign?
Whatever the employer’s conduct the employee who continues to work without complaint will be seen as eventually affirming the contract and waiving any breach. So, for example, if the Chelsea doctor continues to work with the team and follows the manager’s instructions not to sit on the bench at matches, it might not be very long before she will have lost any right to make a claim of constructive dismissal.
However, in a recent case that came before the Employment Appeal Tribunal  it was highlighted that before an employee is taken to have affirmed the contract the consequences for that person should be taken into account. The individual will be under pressure and faced with having to make a serious decision and it would be unreasonable not to allow them some thinking time before taking the step of leaving and putting themselves out of work.
 Frempong v Howard Frank Ltd 31 July EAT