Before we look at when an employer does have grounds to demote their staff, we should first ask: when can’t they do so?
Eva Carneiro, Chelsea’s former team doctor, who is suing Chelsea in an employment tribunal, may think she knows the answer. She would probably argue that going onto the pitch to treat an injured player at the referee’s request was not grounds for demotion.
But Chelsea’s ex manager Jose Mourinho could beg to differ.
THE CARNEIRO INCIDENT
At the beginning of this football season, during a match between Chelsea and Swansea, Carneiro and the team physiotherapist went on to the pitch to treat Chelsea’s Eden Hazard. Because of the rules, Hazard had to come off the field for a period of time. This was unfortunate for Chelsea, which was already down to ten men, having had their goalkeeper sent off. Mourinho – not too happy it would seem – shouted from the touchline and publicly criticised the medical staff as “naive” after the match. Carneiro was then removed from the front bench during matches, and subsequently resigned.
ALTERING EMPLOYEE DUTIES
Substantially altering an employee’s duties could effectively amount to a demotion.
Demoting does not just occur when an employee is formally demoted to a lower position. If key responsibilities or tasks are taken away from the employee, that could be seen as a demotion too. Staff could argue that, by taking away a significant part of their work, their employer is breaching the implied term of trust and confidence. And if the employee is no longer carrying out duties, as set out in their contract of employment, the employer may also be breaching express terms of the contract.
Carneiro may argue that her employer breached the implied term of trust and confidence, in that she was publicly undermined and relieved of her first team duties. Depending on the terms of her contract, if being on the front bench was a fundamental part of her role, she could also argue that Chelsea breached express contractual terms.
An employer must have a contractual right to demote. The Advisory, Conciliation and Arbitration Service’s (ACAS) code of practice on disciplinary and grievance procedures states that the usual sanctions in disciplinary cases are written warnings, final warnings and dismissal. The relevant ACAS guidance clarifies the position. If an employer wishes to impose another sanction, it must either be allowed for in the contract or the employee’s consent must be obtained.
When might an employee consent? Suppose their actions justified dismissal but the employer was willing for them to continue in employment, albeit in another lower paid role. That could still be preferable to getting a P45.
CONSTRUCTIVE UNFAIR DISMISSAL
To succeed in a claim, the employee must have resigned quickly as a result of a fundamental breach of contract by the employer. This could be a breach of trust, for example, or another major breach. The employee would normally need to have at least two years’ service to bring the claim. The maximum compensation award is the lower of 52 weeks’ pay or £78,335 (increasing to £78,962 from 6 April 2016).
Demoted employees could have other claims too, such as for discrimination. It is therefore important to think carefully before demoting. Remember, even if you don’t show an employee the red card, your actions could still come back to haunt you.