UK: The Lessons That Can Be Learned From Humiliation

Last Updated: 13 November 2015
Article by Graham Mitchell

Two recent cases in the sporting sphere have highlighted employment law and personal injury issues that have general application for all employers.

Carneiro v Chelsea

We know that Eva Carneiro resigned and claimed constructive dismissal against Chelsea FC.

It is now reported that there will be a separate but connected claim served on Mourinho regarding claims against him and against the club. It is likely that the individual legal claim against Mourinho will be of victimisation and discrimination.

The circumstances in this case are well known. Eva Carneiro is an eminently well qualified Doctor specialising in sport. Chelsea were drawing 2-2 with Swansea and were down to 10 men. Star player Eden Hazard was lying prone, apparently injured. The referee, on two occasions, requested Dr Carneiro and physio, Jon Fearn, to enter the field to treat Hazard. Under General Medical Counsel guidelines Dr Carneiro was obliged to enter the pitch when called by the referee, regardless of whether the manager wanted her to treat the player. To ignore the call from the referee would have put her in breach of one of the GMC's first tenets. She was obliged to put the principles of the GMC above the wishes of her employer. By entering the field of play with the physio, she acted correctly. In addition, at the time, she was not aware of her manager's views.

José Mourinho's reaction was allegedly to:-

  1. Criticise the Doctor and physiotherapist publicly for treating Hazard, claiming that they did not understand the game and that she was "naïve."
  2. Demote both from the bench and provide that they could no longer serve on match days, travel with the team, nor work with them at the training ground.
  3. Allegedly make discriminatory comments about the Doctor on grounds of sex.

A number of issues arise from these circumstances including:-

  1. In what other industry is someone demoted for doing their job outstandingly? It is probable that demotion without good cause is an express breach of the Doctor's contract. The implied term of trust and confidence would undoubtedly be breached by demotion in these circumstances.
  2. If Dr Carneiro can show a repudiatory breach of contract and that she resigned in reliance upon that breach, it would be an unfair dismissal. The employer would struggle to show what the potentially fair reason is.
  3. Sex Discrimination. Dr Carneiro could claim that she had been demoted because of the stereotype that as a woman, she did not understand football.

Dr Carneiro's problem here is that the physio is male and was also demoted. She cannot use him as a comparator. It may however come down to whether Mourinho also uttered the male version of the insulting phrase. This could be evidence as to whether the motive behind the demotion included grounds of sex. Alternatively she could argue that as the Doctor, she was head of the medical team that went onto the pitch and Mr Mourinho believes that the leader of the medical team should be a male, who would understand the nuances of the game. She could use a hypothetical comparator on that basis.

Whilst it would be interesting to see the outcome, with the money available in football it is highly likely to result in a substantial out of court settlement. A football club with slightly less available is Stoke City.

GB v Stoke City and Fox

In GB v Stoke City [2015] EWHC 2862 the claimant was an apprentice footballer with Stoke City for whom Fox was the regular first team goalkeeper.

GB's claims were based on allegations that on two occasions Fox was guilty of assaults on him. As against the club GB claimed damages on the basis of its vicarious liability for the unlawful acts of Fox as its employee.

In that regard GB's case was that the club operated a system whereby, as part of their training, apprentices performed what might be called "menial" duties for the professional players. These duties included cleaning their kit, preparing liquid refreshments and cleaning their dressing room. GB alleged that it was this feature of the club's operation which created or enhanced the risk of a professional assaulting an apprentice if he was disgruntled with his performance of these menial tasks.

In the course of its judgment the court found that vicarious liability did not arise in these particular circumstances: `In my judgment, the acceptance of the claimant's submission would involve an extension of the boundaries of vicarious liability beyond the parameters of the decided authorities... Most if not all apprentices or trainees in all workplaces, not just sporting organisations, would be at such a theoretical risk and such a finding would be little short of holding that any employer should be vicariously liable for any assault on any apprentice or trainee by a full-time employee in all circumstances.'

Conclusion

Although as can be seen, cases will turn on the individual facts, there are a number of potential "penalties" for employers who (allegedly) humiliate employees in front of others for simply doing their job.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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