20 October 2015: Constructive Dismissal & Chelsea Football Club

As widely reported on the sports pages, Chelsea manager José Mourinho criticised club doctor Eva Carneiro for going on to the pitch to treat the aptly named Eden Hazard. She was subsequently dropped from first team duties as a result. She resigned, and her lawyers are now considering a claim of Constructive Unfair Dismissal.

Dr Carneiro will no doubt be seeking a settlement before she has to submit a Tribunal claim, but José Mourinho may console himself with the thought that any compensatory award from the Employment Tribunal for unfair dismissal will be capped at not more than 52 weeks pay or £78,335 (loose change to a club like Chelsea), and that she is unlikely to get an award of costs even if she is successful.

Such claims can be difficult, as Stella English found in her constructive dismissal claim against BBC Apprentice boss Alan Sugar. Constructive Dismissal is when the employee resigns in response to a breach of an express or implied term or condition of employment by the employer.

This is nothing if not a complex area of law, fraught with difficulties, but in general terms In order for an employee to be able to claim constructive dismissal, four conditions need to be met:

There must be a breach of contract by the employer. This may be actual or anticipatory.
The breach must be sufficiently serious to justify the employee resigning, or else it must be the last in a series of incidents which justify leaving.
The employee must leave in response to the breach.
The employee must not delay too long in terminating the contract in response to the employers breach, otherwise s/he may be deemed to have waived the breach.

If the employee hasn’t been paid for the last three months, this is almost certainly going to be grounds to resign and claim constructive dismissal. In the bulk of cases, it’s rather less clear cut. Often employees will rely on breach of the implied term of ‘trust and confidence’ which underlies all employment relationships. There may be a one off breach, or a series of minor breaches over time which cumulatively destroy the employment relationship.

James Carmody is a solicitor specialising in Employment Law. Call 0207 118 0950 to ask about unfair dismissal, constructive dismissal or any other employment law related matters.