16th October 2015

Focus On: Current Affairs

“Blue is the colour…”

A male manager rebuked two employees shortly after a tense and unsuccessful event; one is a female Doctor, the other is a male physiotherapist.

The rebuke is issued publicly in front of a large number of witnesses. The manager appears to blame the colleagues for the outcome, although most witnesses believe that this is wholly unjustified.

Furthermore, a third party who witnessed the incident thought that they heard the manager utter a derogatory comment, possibly of a sexist nature, towards the Doctor.

The following week both the Doctor and the physio’s duties were changed with immediate effect. They were essentially demoted.

The male employee stayed with the company. The female resigned her position.

An investigation found that the manager had not used discriminatory language. The investigator was not asked to look into the other issues of alleged mistreatment. The female employee complained that she had not been asked to provide her version of events. She consulted her solicitor.

An outside observer proffered that the Doctor had been “mistreated, undermined and verbally abused and yet no one (apart from the worker herself) has faced significant consequences”.

News of the incident spread. A widely held suspicion in the sector was that the manager, highly successful in turning around the fortunes of his organisation, was untouchable and that the shadowy side of his charismatic leadership style has to be mollified or ignored, for fear that if he is challenged directly, he may leave and join a competitor.

The board of directors made no comment.

By now you may be aware that the above relates to recent happenings at Chelsea Football Club. The quote from the outside observer is from Heather Rabbatts of the FA.

It is common knowledge that football, particularly, Premier League football, has always appeared to have its own set of rules for hiring and firing whereby disputes and unlawful treatment is invariably resolved by the cheque book.

Nonetheless there are some interesting lessons for all employers in this high profile incident. In particular, leaders set the tone of what is considered acceptable behaviour in an organisation. If a leader displays bullying/aggressive behaviour, it should not come as a surprise if this will be copied by others and permeate through the workforce. Secondly, people leave managers rather than organisations. The performance of those who witness bullying often deteriorates, causing them to resign too. It is interesting to note that Chelsea’s performances since the incident have been distinctly under-par, hinting at an unhappy dressing room. Thirdly, there is reputational harm. Where an organisation becomes known for mistreating people, the spirit of togetherness and loyalty necessary to sustain a successful business can quickly evaporate. Finally, leaders should never underestimate the power of a timely and sincere apology – something noticeably lacking in this case.

Those are some of the lessons for the club. The lessons for Investigators include agreeing clear terms of reference and particularising the allegations; as well as identifying who must, as a minimum, be interviewed to ensure fairness and impartiality. This must include an offer to interview the individual who has allegedly been wronged. If not, as Dr Carneiro herself has said, “Choosing to ignore some of the evidence will surely influence the outcome of the findings”.

And before all that, the investigator must consider whether he/she has any conflict of interest and whether he/she is genuinely capable of acting fully impartially. In this particular case the authors must declare that they are supporters of Leeds United and Liverpool, so would fall at the first hurdle….

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The Rules of the Game

Eva Carneiro is an eminently well qualified Doctor specialising in sport. She studied at the University of Nottingham, the Australasian College of Sports Physicians in Melbourne and completed her MSC in Sports & Exercise at Queen Mary University of London.

Her CV includes working for West Ham, England Women’s football team, UK Sport and being a medical specialist with the Olympic Medical Institute preparing for the 2008 Olympic Games. She joined Chelsea in 2009 and worked for a number of managers before José Mourinho, the current Chelsea manager.

Well qualified indeed!

By way of background, early in 2014/2015 the FA received complaints that Dr Carneiro was subject to abusive sexist chants at various grounds including Old Trafford and the Emirates. The response of the FA was that there was no evidence of such behaviour or that she must have misheard. Months later video footage came to light which provided conclusive evidence that sexist chants were made against her. Neither the FA nor Chelsea took decisive action.

The rules of the FA are clear in relation to Doctors and physiotherapists entering the field of play – they cannot do so unless requested by the referee. The circumstances in this case are well known. 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 Caniero 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 to:-

1. Criticise the Doctor and physiotherapist publicly for treating Hazard, claiming that they did not understand the game.
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.

The FA investigated the matter after receiving a third party complaint. This involved investigating whether there were “offensive, insulting or abusive language and/or gestures”. They concluded that Mourinho was speaking to himself and therefore escaped sanction. Chelsea refused to comment, but it is believed that no action has been taken against Mourinho.

A number of issues arise from these circumstances including:-

1. Breach of contract. In what other industry is someone demoted for doing their job outstandingly? There may be express terms in the Doctor’s contract which provide for demotion but it is probable that demotion without good cause is an express breach of the Doctor’s contract. Even if there is a right to demote, the implied term of trust and confidence would undoubtedly be breached by demotion in these circumstances. The damages available to the Doctor would be for her notice period, subject to any mitigation.
2. Unfair dismissal. If Dr Caniero can show a repudiatory breach of contract (demotion) and she resigned in reliance upon that breach, it would undoubtedly be an unfair dismissal. The employer would struggle to show what the potentially fair reason is.
   Capability? Chelsea could suggest that she didn’t understand football. However, she clearly did because she precisely followed the rules of both the FA and the GMC.
   Conduct? As indicated above, she followed absolutely the correct course.
   Undoubtedly therefore Chelsea has unfairly dismissed the Doctor.
   Subject to mitigation, this would almost certainly result in the maximum award of £78,335 plus basic award.
3. Sex Discrimination. Dr Cairneiro could claim that she has been demoted because of the stereotype that as a woman, she did not understand football.

Dr Caniero’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.

If she was successful in claiming sex discrimination there would be no cap on any award. She would be entitled to injury to feelings and potentially aggravated damages because of the way that Chelsea handled the situation. Specifically, no one spoke to her for her evidence, the investigation belittled the seriousness of the issue, there has been no apology and Mourinho has justified his position throughout. She could also point to the failure to deal with the previous allegation of being exposed to sexist chants.

It would be interesting to see the case go to a hearing for a number of reasons. First, it is of public interest. Secondly, it is legally interesting. Most importantly however, it is an opportunity for football to be exposed to public scrutiny in relation to its attitude to women in the game. However, with the money available in football it is highly likely to result in a substantial out of court settlement.

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In Other News

Casting The Net On Discrimination

In December 2014 the EAT held that Ms Tirkey, an Indian who identifies herself as part of the “serving class” or “low caste”, was allowed to pursue a race discrimination claim against her employers, Mr and Mrs Chandok, on the basis of her caste. In September the Employment Tribunal (ET) handed down its Judgment, finding in favour of Ms Tirkey on all counts. The Judgement provokes Dickensian images of mistreatment at the hands of her employers. The ET held that Ms Tirkey would not have been treated as she was if she was not of “low caste”. Amongst a whole host of findings, the Chandoks must pay Ms Tirkey £183,733.55 under the National Minimum Wage legislation. A remedy hearing to consider compensation for unfair dismissal, breach of the Working Time Regulations, race and religious discrimination is listed in November. Ms Tirkey can expect a large award.

Discrimination Ltd

Throughout the Equality Act 2010, where discriminatory treatment is referenced, the word “person” is used to describe the victim. In the case of EAD Solicitors v Abrams, the EAT held that a “person” can include a limited Company. Mr Abrams set up a limited company (a consultancy), which was made a member of the LLP, rather than him personally. He worked for his limited company, not the LLP. When the LLP said that Mr Abrams had to retire, he could not personally make a claim against the LLP; but the EAT held that the limited Company could bring a claim on the basis of the protected characteristic of someone associated with them, Mr Abrams.

When Are Workers Working?

The last few months have seen some significant cases in the field of working time. Under The Working Time Directive, “working time” is any time where the worker is: 1) working; 2) at the employer’s disposal; and 3) carrying out their activities/duties in accordance with their national laws.
First up, travel time: in Federacion de Servicios Privados del sindicato Comisiones Obreras -v- Tyco Integrated Security SL and another the ECJ considered when travel time should count as “working time”. In this case the workers did not have a set place of work and were assigned various jobs at different locations every day. The ECJ held that in cases like this, time spent travelling to the first job and the return home should be treated as “working time”.

In Shannon v Clifton Home Residential , the Claimant was an on-call night worker who lived at his place of work. The EAT held that time spent awake and working counts as “working time”, whereas getting paid for the time he was asleep was, alas, in his dreams.

TUPE – Laid Off But Not Laid Out

In Inex Home Improvements Ltd v Hodgkins & others the Claimants had been working on a building contract, but were laid off due to temporary cessation of work. Whilst they were laid off, the contract was taken over by another contractor, and TUPE applied as a service provision change. The laid off staff did not transfer as they were not deemed to be part of an “organised grouping”. The EAT rejected this and held that the laid off staff should have transferred.

Agency Workers

The Agency Worker Regulations 2010 provide various rights to agency workers, including the right to be informed of vacancies at the host employer. In Coles v Ministry of Defence , Mr Cole’s role (which he was performing as an agency worker), was filled after redeploying a redundant permanent employee. Mr Coles was not offered an interview and claimed that the MoD had breached the right to equal treatment in basic working and employment conditions. The EAT held that for agency workers, the right to equal treatment is confined to working time and pay, and there is no entitlement to be offered a vacancy or even an interview; rather the right is to be informed about vacancies.

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