Jenifer Nicol: Why the ref might not be the only whistleblower

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Usually the referee blows the whistle in football, but might Dr Carneiro (front left) do the same? Image courtesy of Brian Minoff / London Pixels

Jennifer Nicol (1)The UK press has been gripped in the last week with the developing story of Jose Mourinho’s behaviour towards the Chelsea first-team doctor, Eva Carneiro.

A quick re-cap: Jose Mourinho reacted angrily when Dr Carneiro and the team physiotherapist went on to the field of play to treat an injured player, having twice been beckoned by the referee to do so. In addition to his angry behaviour pitch-side, Mr Mourinho was critical of Dr Carneiro and her colleague in comments he made after the match. The sporting and medical communities have been vocal in their support of Dr Carneiro, pointing out that the medical staff are obliged to go on to the pitch when requested by the referee and have also emphasised the doctor’s duty of care to the player.

In spite of doing nothing wrong, Dr Carneiro appears to have been badly treated, criticised and demoted from the front bench. Time will tell whether she opts to take action against the Club, but there are real lessons arising from this story for all employers.

Employment rights

Most employees treated in the way Jose Mourinho treated Dr Carneiro might be tempted to resign and claim constructive dismissal, with very good prospects of success. Leaving aside the PR and employee relations risks from behaving in this way, a UK employer could face having to pay compensation in excess of £80,000 if they lost at Employment Tribunal. By interfering with Dr Carneiro’s professional judgment, publicly undermining her and demoting her from the front bench, Mr Mourinho is likely to have acted in breach the implied term of trust and confidence. It is also possible that he may have acted in breach of express terms of the employment contract, if for example her contract states that working on the front bench is a core duty.

An employee faced with such a breach has the choice of resigning and claiming that they have been constructively dismissed, or waiving the employer’s breach and continuing in employment.  If they decide to claim constructive dismissal, they will need to act reasonably promptly, otherwise they may be found to have affirmed the contract meaning they lose the right to claim constructive dismissal.

Is there anything an employer can do if they find themselves in a situation such as this, where perhaps a manager has overstepped the mark or has acted in haste and is now regretting it? Legally, it is not possible for an employer to “cure” such a serious breach of contract by attempting to make amends/ undo what has been done but sometimes apologising can remedy the situation before the employee walks out. An offer to make amends may also force the employee’s hand as the employee will generally need to come to a decision more quickly over whether to resign if the employer has offered to remedy the problem. Also, where the situation hasn’t hit breaking point yet, senior management may be able to step in and make an offer of amends to prevent matters getting to that stage.

Whistleblowing

For the employers who don’t regard the risk of an unfair dismissal claim and £80,000 compensation as sufficient enough disincentive, it is worth bearing in mind that an employee who complains about breach of a legal obligation by their employer and who is then badly treated, gains protection as a whistleblower. It is also worth remembering that whistleblower protection extends beyond employees to workers and LLP members.

For instance, if Dr Carneiro or someone in her position complained that their manager’s instruction was unlawful or that her employer had instructed her to breach a legal/medical duty, it is open to them to claim that their subsequent demotion (or any other bad treatment) amounts to detrimental treatment on whistleblowing grounds.  In order to be protected, they would need to be able to show that they reasonably believed that the disclosure they made (that their manager had instructed them to breach a legal duty) was in the public interest. This is unlikely to pose a significant hurdle in a case such as this where a player’s health and safety is potentially at risk.

Assuming the employee is protected as a whistleblower, they can bring a claim, even if they decide not to resign, and seek compensation for injury to feelings – compensation is not limited to cases where there the employee suffers a financial loss. Injury to feelings awards can range from £600 to £30,000, depending on the seriousness of the mistreatment suffered. If the employee decides to resign, rather than staying and suing, they can claim unfair dismissal on whistleblowing grounds.  Such a dismissal is automatically unfair and compensation is uncapped.  In addition, there is no requirement for two years’ continuous employment, in the way there is with an ordinary unfair/constructive unfair dismissal claim. Although only employees can claim unfair dismissal, a worker who is dismissed on whistleblowing grounds can claim financial compensation as well as injury to feelings as part of a detrimental treatment claim. Incidents like the one involving Dr Carneiro in the more mainstream workplace could therefore be extremely costly indeed for employers.

So to recap – what should sensible employers do?

  • Instruct managers to avoid aggressive or angry outbursts at all times
  • Ensure that managers receive training in order to minimise the likelihood of outbursts.
  • Diffuse the situation as quickly as possible
  • Attempt to remedy/apologise/improve
  • Involve very senior management in mediating/seeking to improve working relations
  • Obtain early legal advice!

 

 

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About Jenifer Nicol

Jennifer Nicol is a partner at workplace law specialists Doyle Clayton www.doyleclayton.co.uk . She has been practising employment law for 15 years and is an experienced and tenacious advocate. Her main areas of expertise include contentious employment disputes; employment tribunal and EAT advocacy; sex and disability discrimination; whistleblowing and stress-related claims.

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