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Physician Heal Thyself…

24 September 2015
Neil Paterson

What at first may have appeared as a familiar attempt from Jose Mourinho to deflect focus from Chelsea’s opening day result against Swansea by accusing his medical staff of ‘not understanding the game’ in a post match interview quickly developed into something of a scandal.


At the centre, club doctor Eva Carneiro…  She attended the injured Eden Hazard after the referee  signalled twice to Chelsea’s bench for assistance for the Belgian attacker.  Unwittingly she incurred the wrath of Mourinho – medical assistance meant the player had to leave the field of play, leaving Chelsea a man down.  (Though of course to ignore the stricken player and the request from the referee would have been to ignore the Hippocratic oath…). 


Mourinho, and by extension the club’s conduct since, in labeling Carneiro ‘naïve’ and demoting her from the bench for first team fixtures to the training ground, provided a number of potential remedies following the announcement this week that the medic would not return to her ‘new’ role at Chelsea.


Enshrined in the contract of employment between employer and employee is the implied term of ‘mutual trust and confidence’.  Arguably Dr Carneiro’s effective demotion from her normal duties at Chelsea – seemingly without just cause - has led to a breach of  that implied obligation – that she has been publicly humiliated in the process further exacerbates the harm.


In terms of options available to Dr Carneiro, she could have;


1 – accepted her reduced role and continued in employment (which would have prejudiced any potential claim against Chelsea brought at a later date.

2 – refused to accept the demotion, resign and bring a claim for constructive dismissal against Chelsea FC, on the grounds that there had been a breakdown in the implied term of mutual trust and confidence (both on the grounds that her role had changed without consultation, and she had faced public humiliation). As per section 95 (1) c of the Employment Rights Act 1996, termination on such grounds must be ‘by reason of the employer’s conduct’ - in normal circumstances this gives rise to a possible claim, ordinarily before the Employment Tribunal. 

3 – reach a settlement agreement with Chelsea on which, in consideration of a number of terms, Dr. Carneiro and Chelsea mutually agree to terminate the employment relationship between them.  An ongoing obligation of confidentiality would doubtless be a significant bargaining tool in any negotiation… 


It is worth pointing out that there is no way for Chelsea to repair the breach. Of course the club could have reversed the decision and sought to placate Dr. Carneiro, but as we see, this did not happen.

Footballing disputes fall in England fall within the purview of the FA Rules of the Association, specifically Rule K  - a clause which provides that disputes are remedied by arbitration.  Rule K is designed to cover not only players and managers, but all ‘participants’ of the game, including employees involved in any  ‘any activity sanctioned either directly or indirectly’ by the Football Association – as such, conceivably, Dr Carneiro and Chelsea could find themselves before an arbitration tribunal. 


Arbitration was utilized in 2009 by Kevin Keegan who successfully was awarded compensation for unfair dismissal by Newcastle United following his resignation on the grounds of having players foisted on him by then director of football Dennis Wise.  The advantage of arbitration is that the employee is not subject to the usual caps on compensation which the Employment Tribunal imposes. 


There are two possible stumbling blocks to any claim Dr Carneiro might have: 


1. in the aftermath of matchday, she posted on social media a thank you to the public  “for their overwhelming support” which she added was “really very much appreciated”.  Chelsea could conceivably argue that the scaling back of her activities was in reaction to her ill-advised social media posting rather than the events of the matchday. 

2. The second is the delay in Dr. Carneiro’s resignation. Whilst we are not privy to the precise timetable it seems on a cursory view that it has taken over a month for Dr. Carneiro to announce she will not be returning to her club duties.  Delay in itself does not extinguish one’s right to claim constructive unfair dismissal - however, the onus is on the claimant to demonstrate that they did not affirm the contract during this time.


We suspect Chelsea will want to keep a firm lid on these events and on any stories she might have to tell.  We would anticipate the announcement of a private settlement ‘without further comment’ in due course…

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