Marianne Browne from Averta Employment Lawyers has a look at Eva Carneiro’s constructive dismissal claim.

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.