averta2505

Football doesn’t normally interest me, but I am waiting with anticipation to hear the outcome of Eva Carneiro’s claims of constructive dismissal and breach of contract against Chelsea Football Club as well as her claim of discrimination against Jose Mourinho.

On 8 August, Carneiro and head physio, Jon Fearn, received public criticism from Mourinho for entering the pitch to treat a Chelsea football player during a game against West Bromwich Albion. Mourinho described the pair as “impulsive” and “naïve”. Carneiro then lost her place on the bench and was not allowed to attend matches or training sessions, so was effectively demoted.

We do not know all the facts relating to the termination of Carneiro’s employment but it is understood that she resigned from the Club and is now claiming constructive dismissal, breach of contract and discrimination.

With regard to a claim for constructive dismissal, Carneiro will need to establish that her employer’s conduct represented a fundamental breach of contract and that because of that breach, she was entitled to resign. In this case a demotion or suspension without justification would be considered a fundamental breach of contract. Carneiro might also point to the fact that there is no longer any trust and confidence between the parties. There is an implied term of trust and confidence in every contract of employment and, if this is breached, there may be grounds to claim constructive dismissal.

As a doctor, if Carneiro had not treated the football player she would have been in breach of the General Medical Counsel’s guidelines on the treatment of patients.

So it follows, that she was simply fulfilling her ethical and professional obligations, as well as, presumably, her contractual obligations. From the standpoint that Carneiro did nothing wrong, then in publicly criticising and demoting her, I would have thought an employment tribunal will find that she was constructively dismissed.

However, as I said in the previous paragraph, we do not have all the facts relating to her resignation or what happened on and after 8 August. We do not know what her contractual obligations are to the Club. So we don’t know all the facts that an employment tribunal will need to consider when determining whether or not she was constructively dismissed or the Club breached her contract.

The hearing yesterday was a preliminary hearing heard in private at London South Employment Tribunal. Preliminary hearings will typically be used to clarify the issues that the tribunal will need to determine at the final hearing; determine the steps the parties will need to take to prepare the claim for the final hearing; issue case management orders requiring certain steps to be undertaken and explore the possibility of settlement or alternative dispute resolution between the parties. It is normal that preliminary hearings are held in private, unless the hearing involves the judge determining any preliminary issues or considering whether the claim should be struck out.

Although we only have media speculation to rely on at the moment, it will be interesting to see how the case develops.

In a speech about the future of the NHS earlier this year, Health Secretary, Jeremy Hunt claimed that a ‘Monday to Friday’ culture existed within the NHS and warned that flatline contracts would be altered to allow seven-day services. To say the least, this provoked a strong reaction from NHS staff, particularly doctors and consultants who resented that implication that weekend care was substandard. Rather than explore the implications of the potential contract changes from an employment point of view here, we’d just like to air the views of a junior doctor who is married to one of our members of staff. As with all media panics, there is more than one point of view, but we thought this explained some of the complexity of what goes on, ‘at the coalface’ and brings some insight to the debate:

Chimpanzees in laboratories and zoos may have the right to claim a breach of the minimum wage and working time regulations; they receive no pay, do not have regular rest breaks and are not given the statutory minimum holidays. It’s a disgrace and employment law is not working for them.

If the chimps are mistreated they may have the right (through a representative of course) to issue a claim in the employment tribunal but how would they afford the issue fee, the remission system is not yet set up for claims from primates?

Well, perhaps we are not quite there yet; however looking at way the law is developing in terms of grappling with the rights of “non-human persons” it’s perhaps this is not such a crazy idea?

An Argentinian court decided that a Sumatran orang-utan called Sandra, should have the legal status of a “non-human person” and thus have comparable rights – BBC news Dec 2014. It was argued by the Association of Professional Lawyers for Animal Rights that Sandra was intelligent and self-aware enough to understand

and be affected by the conditions at the zoo where she was being held captive. Sandra had been born at the zoo in Berlin 30 years ago and for 20 years has lived at a zoo in Buenos Aires. The court granted a writ of habeas corpus to Sandra and it held it was necessary to decide whether Sandra was being detained unlawfully.

Sounds crazy? Well, when we ask ourselves what makes man so unique that he or she should have rights and protections but a fellow mammal who is also aware, emotionally complex and intelligent does not, the debate is not as straight forward as you may at first think.

There are fascinating philosophical and scientific debates over how we define our humanity and it is not only in Argentina that the courts are entertaining legal arguments over the definition of “non-human persons”. Just over the pond, a Judge in the USA, in April of this year, granted two chimpanzees a petition to argue for a writ of habeas corpus. Although the writ was not granted, the attorneys for the chimps were given the chance to at least argue the case, which they maintain implies that the chimps were “persons” in a legal context, or, at least it was acknowledged by the court, could be.

The European Convention on Human Rights is an international human treaty giving all “people”, a set of rights. The ECHR is divided into articles such as Article 4 which includes the right that no one shall be held in slavery or servitude, Article 3 deals with the Prohibition on torture. The Human Rights Act 1998 made the ECHR part of our UK domestic law and our laws, including employment laws should be read in a way to ensure there are compatible with it.

Children can take cases to a court in England if their rights have been infringed, however, on the questions of morality and ethics, Peter Singer a renown “thinker” for example argues that the normal reasons against killing persons (painlessly) do not apply to infants because a human infant has no inherent value. What makes killing morally wrong (he argues) is not that the entity that is killed is a human being but that such an entity is a person, human or otherwise.

To be a person an entity must be rational, self- conscious, aware of its own existence over time, able to communicate and so on. Infants, like foetuses do not have such capabilities (until they reach a certain age) and so are not “persons”, he argues, although they are human. If we scoff at this, then consider what is the difference between an early foetus and a baby unaware of its own existence- why is it morally permissible to terminate one but not the other if it involves no distress or pain?

Are we not trying to find a point at which a human being becomes a person? I make no moral argument either way, I only seek to point out the difficulties in the moral distinctions which provide the architecture for our laws.

Peter Singer’s arguments may seem unpalatable but it does give rise to fascinating debates over the rights we afford to what may be human “non-persons” who cannot communicate and are not even aware of their own existence, over the rights we are willing to give to mammals who are self-aware, intelligent and able to communicate, but are not human.

Perhaps seeing chimps in the employment tribunal may be a step too far, although it would perhaps provide another interesting argument for reforming the tribunal fee system ; you can’t expect a chimp to pay to issue a claim when he doesn’t have the right to the minimum wage (let alone a living wage).

Apart from being the three highest paid sportsmen on the planet, their mammoth salary seem like peanuts compared to Gaius Appuleius Diocles, the slave-turned-chariot racer whose lifetimes earning were the equivalent of a staggering £9.42 billion, according to researchers.

This seems even more incredible when you consider that the illiterate Diocles earned roughly two and a half times per year more than than Mayweather, Ronaldo and James’ have earned in 2014 combined. Mayweather, the highest earning sportman today, earned a measly £65 million in 2014, in comparison to Diocles’ £396 million each year.

Not even Ronaldo’s £49.6 million in 2014 compares to Diocles.

During his career, the Ancient Roman charioteer earned the vast majority of his wealth through prize money, contrasting with most modern sportsmen who earn their mega-bucks through endorsement deals and sponsorship in addition to their direct earnings from sport. Tiger Woods, for example, earns £3.8 million from golf, but £34 million from all of his endorsements combined. A similar story is also true of Roger Federer, with the Swiss only earning £2.6 million through tennis, compared to his £32 million he earns from his various endorsements.

Professor Peter Stuck, the Associate Professor of Classical Studies at the University of Pennsylvania, said:

“The modern sporting spectacles we manage to stage—and on occasion be appalled by—pale by comparison to the common entertainments of Rome.”

The 24 years of winning earned Diocles the handsome sum of 35,863,120 sesterces in prize money – nearly £10 billion by today’s standards. For each race, his total take home pay was the equivalent of five times the highest earning provincial governors, enough to provide grain for the entire city of Rome for a year, or to pay for all of the ordinary soldiers of the Roman army at the height of its powers for two and a half months.

Despite the staggering amount earned by Diocles, this might be a fair reward when you consider the high risks of a grizzly death and a violent bloodbath as the competitors turn on each other in the aggressive seven-lap races. Those that managed to finish in the top three, despite the treacherous conditions, took home the prizes.

Sandeep Cheryian

Since 6 May, new rules have made it obligatory for would be claimants to contact Acas to attempt early conciliation of most tribunal claims before such a claim (e.g. unfair dismissal, discrimination) can be made to an employment tribunal.

So now, if you want to issue proceedings in the employment tribunal, you must now contact Acas first, (whether by telephone or on a specific form) and provide some information. Once you have made contact, an Acas officer will be in touch and take down information, including whether you want to try to conciliate with the employer. Even if you don’t want to participate in conciliation through Acas, you still have to make contact with Acas, as they issue a certificate (EC Certificate); which contains a unique reference number that will need to include this on the application to the tribunal.

If you want to try early conciliation, your information will be sent to a conciliation officer who will be in contact. With your agreement, Acas will also be in contact with the employer and the Acas officer will attempt to get a settlement within a period of one calendar month.

This period runs from the date on which you first get in touch with Acas, but can be extended by up to two weeks. If conciliation fails then the EC Certificate is issued. So all this leaves us with some timing considerations such as:

How does this fit in with the long established time limit of 3 months (less one day) for bringing claims to the employment tribunal?

What if you don’t contact Acas until the day before a claims needs to be submitted? Will you run out of time?

The rules work so that there is never less than a month after receiving the EC Certificate to bring your tribunal claim. This should be enough time to get the claim drafted and submitted. But what does “month” mean in this context? Curiously, and owing to a difference in the wording, the approach to calculation is by reference to the corresponding date (i.e., not less one day). Or is it?

Our advice is until the lawyers have finished battling this one out, the safest approach is not to leave contacting Acas to the last minute, thereby avoiding disputes over whether a claim is in time or not. To be even safer, take good legal advice at the earliest opportunity.