Chelsea FC Manager Jose Mourinho hit the headlines recently as a result of his actions towards team doctor Eva Carneiro and physio Jon Fearn, who were both heavily criticised for running on to the pitch towards the end of the Chelsea v Swansea game on 8 August to treat one of the players, Eden Hazard.
The views of Mourinho were that Carneiro and Fearn had acted to the detriment of the game and Mourinho wasn’t shy in showing his fury regarding their actions. A substantial change to both roles were made following the game, which became clear to the public when neither parties were present on the bench at the match between Chelsea and Manchester City on 16 August 2015.
This raises the question of how such actions by a manager can lead to issues from an employment law perspective. Here I will flag the potential issues that can arise from demoting an employee.
Potential breach of contract
When an employer demotes an employee without warrant or by failing their HR procedures, this can lead to a breach of an employee’s contract. When considering demoting an employee, the employer must consider the seriousness of the employee’s actions, whether a demotion is reasonable and a proportionate sanction in such circumstances, and whether the employer has the contractual right to demote an employee.
In absence of an express right to demote an employee, the employer can seek agreement from an employee to accept the demotion. This agreement should be in writing. In circumstances where an employer could justify dismissing the employee but is willing to give the employee a ‘second chance’, demotion could be put to the employee as an alternative to dismissal.
What to check
An employer should check their disciplinary procedures. Sometimes such policies are contained within the employee’s contract of employment, or can be found in a separate handbook.
If your disciplinary policy/employment contract is silent on demotion, it is advisable to include a section on demotion as an option available to the employer when dealing with a disciplinary matter.
In the High Court case of Smith v Housing Trust , for example, it was ruled that an employer had committed a breach of the employee’s contract where they demoted an employee as a consequence of the employee posting a controversial comment on his Facebook profile regarding same sex marriages in a church. This case illustrates the importance of assessing the facts fully before making a decision to demote an employee.
This is where an employer has committed a breach of the employee’s contract of employment. The breach is so serious that it entitles the employee to regard themselves as released from their obligations owed under such contract and permits the employee to resign from their position without providing notice. Care must, therefore, be taken when demoting an employee, so as not to give rise for a claim for constructive dismissal.
A demotion can happen without the employer deeming it formally to be as such, an example of this could be, where the employee’s job title has not been changed but their role in practice has changed so severely for it to feel like they have been demoted.
Where an employer intends to change an employee’s role substantially, the key to achieving this goal, without falling foul of the rules, is to communicate the change and reasons for it with the employee and to be clear in your own mind that the reason for making such change is justified and is in line with the company’s policies and procedures.
In the Northern Ireland Tribunal case Druse v Newry & Mourne District Citizens Advice Bureau, an award of over £40,000.00 was made to an employee who claimed that the employer had sought to unilaterally impose a new job description on him several times, which would have resulted in significant changes to the employee’s role. It was ruled that the employer had constructively dismissed the employee in these circumstances.
It remains to be seen what the Mourinho fiasco will unveil, however, in this instance he doesn’t appear to have been the perfect role model for an employer. Just remember that consistency, communication, clarity and compliance with contracts/policies are all key when considering demoting an employee. The benefits in return can be significant.