Former Chelsea FC team doctor Eva Carneiro, who left the club after being removed from first-team duties, is bringing an employment tribunal claim against the club and Jose Mourinho. Stephen Simpson sets out 10 dangers employers should be aware of when demoting employees.
Chelsea manager Jose Mourinho publicly criticised team doctor Eva Carneiro after she ran onto to the pitch during a stoppage to treat Eden Hazard towards the end of Chelsea’s 2-2 draw against Swansea on 8 August.
Demotion of employees
Chelsea goalkeeper Thibaut Courtois had already been sent off. The rules for injured players mean that Eden Hazard had to leave the pitch, temporarily reducing Chelsea to nine players.
Mourinho described her actions as “naive”. Carneiro left after her role was substantially changed so that she was no longer on the bench during matches.
It has now been reported that she is bringing an employment tribunal claim against the club and Jose Mourinho individually.
In what circumstances can an employer legitimately demote an employee and what are the risks of doing so?
1. Demotion can be a breach of contract
Before demoting an employee, employers must ensure that the employee’s actions are sufficiently serious to allow for a demotion under the terms of its disciplinary procedure.
There have been cases in which an employer’s decision to demote an employee for an honest mistake or a minor indiscretion have been found to be a breach of the contract of employment.
In Smith v Trafford Housing Trust, the High Court held that an employer breached the contract of an employee whom it demoted for posting on his Facebook page his moderately expressed view as a Christian that same-sex marriages in church were “an equality too far”.
2. Demotion is frequently a factor in constructive dismissal claims
One of the most common features of constructive dismissal claims is that the claimant has been demoted, leading him or her to resign and bring an employment tribunal claim.
This could be the case where, even though the employer has not labelled its decision as a “demotion” and there is no cut in pay, the employee’s job description is altered so drastically that it feels like a demotion.
In Druse v Newry and Mourne District Citizens Advice Bureau, the employment tribunal was satisfied that the employer constructively dismissed the claimant after numerous breaches of his contract of employment. These included seeking unilaterally to impose a new job description on him that entailed significant changes to his role.
3. Employer cannot demote employee without contractual right to do so
The “Acas code of practice on disciplinary and grievance procedures” notes that the normal sanction in disciplinary cases is either a written warning, a final written warning or a dismissal.
The accompanying guidance makes it clear that any other sanction must either be allowed for in the contract of employment or be imposed with the agreement of the employee.
4. Employee’s agreement needed if there is no contractual right to demote
If the employee’s contract of employment does not allow for demotion, the employer should get the specific written agreement of the employee that he or she accepts the demotion.
While it may seem unusual for an employee to agree to a disciplinary sanction, there may well be circumstances where such agreement can be obtained.
For example, if the employer believes that the misconduct in question could justify dismissal but it would be prepared to continue to employ the employee in a lesser capacity, then the employee might agree to the demotion rather than face dismissal.
Football Medical Association (FMA) statement
“At that moment, the player becomes a patient of the medical team and it is the duty and obligation of club medical staff to attend to that patient accordingly and without prejudice to the interests of anyone else including the club employing them.
“The Football Medical Association fully supports the actions of our members and colleagues in this incident who acted with integrity and professionalism at all times, fully cognisant of the rules of the game and in full accordance with that duty of care to their patient.”
5. Employer’s failure to consider demotion as alternative to dismissal could itself be unfair
There is no specific statutory requirement for employers to consider alternative work for an employee who is underperforming.
However, in the event that a dismissed employee brings a claim for unfair dismissal, the employment tribunal is likely to take into account whether or not the employer made a reasonable effort to find alternative employment to avoid having to dismiss, when determining if it acted fairly.
Employment tribunal case Johnson v British Telecommunications plc demonstrates that, even if an employee’s performance is accepted by both sides to be below standard, his or her dismissal can still be unfair if the employer does not consider alternatives such as demotion.
- Do employers need to consider alternative work before dismissing an employee who is underperforming?
6. Demotion can be an act of discrimination
Employers must ensure that any disciplinary action, such as a demotion, pay cut or loss of bonus, is non-discriminatory.
For example, a demotion must be because of the employee’s poor performance, not because the employee is working reduced hours during pregnancy or asked to return to work part time after maternity leave.
In Gault v AVX Ltd, the tribunal found that a woman who was demoted immediately on her return from maternity leave was discriminated against.
7. Employees should be given right of appeal against demotion
Employees should be able to appeal against any formal disciplinary decision taken in relation to them; this includes a right of appeal against action short of dismissal, including demotion.
In Piper v Maidstone & Tunbridge Wells NHS Trust, the EAT considered whether or not a chaplin’s dismissal stood after sanctions short of dismissal (including demotion) were imposed on appeal, when his terms and conditions of employment required his agreement before the lesser penalty could be imposed.
8. Good reason needed if two employees treated differently for same offence
There may be a genuine reason for imposing different sanctions on two employees for the same offence. For example, one employee could already be on a warning, while the other has a clean employment record.
However, suspicions may be raised where there appears to be no genuine reason for a difference in treatment.
In Hume v Compass Services (UK) Ltd, the tribunal held that it was sex discrimination for the employer to dismiss a woman for sexual misconduct while her male partner was demoted for the same misconduct.
- Is an employer obliged to impose the same disciplinary action where two employees break the same rule?
9. Right to be accompanied applies where meeting could result in a demotion
The right to be accompanied at a disciplinary hearing does not just apply to a hearing that could result in dismissal.
Employers should allow an employee to have a companion where a hearing could result in disciplinary action short of dismissal, such as a demotion.
10. Demotion can lead to an unlawful deduction from wages
It is well established that, where an employer unilaterally reduces an employee’s pay with no contractual right to do so, the employee may carry on working under protest and then bring a claim against the employer for the continuing shortfall in his or her wages.
In Morgan v West Glamorgan County Council, the EAT held that the reduction of a college lecturer’s pay, following his demotion by the college’s governing body, amounted to an unlawful deduction from his wages.
This article was originally published on 18 August 2015. It was updated on 30 October 2015.