We were awaiting some bruising cross-examination in the employment tribunal: evidence of how terrible Mourinho had been to Chelsea’s former team doctor; and presumably some evidence in defence. Who doesn’t like to hear gossip from the inside of one of the country’s biggest football clubs?
Now, we will never know for sure what conclusion the tribunal would have come to – in the 25th hour, only a day after Chelsea’s offer of £1.2million was snubbed, the parties have reached a settlement and the club has apologised unreservedly for the actions taken against its former doctor. Not that the timing is unusual – the door of the court is probably the single most common time for settlement.
As we’re not all football fanatics, I’ll summarise the facts. Dr Carneiro was Chelsea’s first team doctor. On 8 August 2015, she had a disagreement with Mourinho – towards the end of a match, when Chelsea were down to ten men, Dr Carneiro as well as the team physio ran onto the pitch to treat a player who had been injured. Mourinho criticised that action as it meant they were playing with only nine players for a brief period.
In response, Mourinho shouted at Dr Carneiro in Portuguese. Either he said, “filha da puta” (daughter of a whore) or “filho da puta” (son of a b***h). Whilst we would advise against managers using any similar words in the work context, the two formulations may be different from a sex discrimination perspective. Dr Carneiro also made other allegations, including that she was marginalised from the first team, that Chelsea failed to support her in response to sexually explicit chanting at games, and that Mourinho said, “She works in academy team or ladies’ team, not with me”. Eventually, Dr Carneiro resigned from the team.
What claims did Dr Carneiro make? It was a public forum, but I was not there and have not seen the claim or response. My understand is that she made the following claims.
- Unfair constructive dismissal. This means that she resigned from employment, however the resignation was in response to a “repudiatory breach” by her employer of the employment contract. That is, a breach that went to the heart of the contract. It might be a breach of an express term – perhaps it was a term of her contract that she was the first team’s doctor, so in effect she was demoted. Alternatively, it might be a breach of the implied term of trust and confidence, which exists in every employment contract whether stated or not. Marginalisation and harassment, if proven, would most likely constitute breach of this implied term. Constructive dismissal is nearly always found to be unfair dismissal.
- Sex discrimination. A discriminatory act is normally by a fellow employee, but if done at work the employer will normally be vicariously liable. In that situation, the employee can claim against both the employer and the colleague. If she wins, both parties will be probably be liable for damages. (The employer can defend itself by distancing itself from its employee’s actions, which means that the colleague alone might be liable.)
From a financial perspective, the discrimination claim is very important. By itself, the unfair dismissal claim would be capped at almost £80K plus the basic award. Given her salary of £280K, the actual losses caused by her resignation would most likely be substantially higher. In a discrimination claim, a successful claimant is awarded the full loss plus injury to feelings (probably £10K to £20K).
But what about this £1.2million offer? Unless she is playing a different game, that suggests she thinks she would have been awarded compensation equating to several years’ pay, which means succeeding in an argument that she will not work in that capacity for some time due to the abhorrent actions against her.
The claim may also be interesting as an example of a growing trend. Recently Jonas Gutierrez won an employment tribunal claim against Newcastle United; the tribunal found he was dropped because of his cancer diagnosis. And Lucy Ward won her case against Leeds United for unfair dismissal and sex discrimination – we await the compensation judgment on that, though of course they may have settled behind closed doors after the finding on liability. And it is not only football that is feeling the heat: Shane Sutton has resigned from British cycling following allegations of sex and disability discrimination, after allegedly telling Jess Varnish she should go and have a baby, as well as making derogatory comments about her body shape as well as rather horrid comments about disabled cyclists.
Small businesses sometimes feel that employment law makes their job unnecessarily difficult. These cases show that no organisations are above the law, but as I always say – if you try to treat everyone equally and fairly, perusing our documents when things seem a little technical, you should be ok. And respecting all the individuals in your team has the added bonus of improving morale and creativity.
You're on our blog and updates site, which is hosted by elXtr. elXtr is a leading online legal information service owned by us, LHS Solicitors LLP.
Law for the online generation starts here.
Chelsea were forced to issue a humiliating apology to Eva Carneiro on Tuesday after they and Jose Mourinho dramatically agreed a pay-off with their former first-team doctor, just moments before she was due to testify against them in a courtroom.