2nd Nov 2015

Have Chelsea FC and Jose Mourinho scored an own goal?

Chelsea’s former club doctor Eva Carneiro is pursuing an employment claim for constructive dismissal against the club following her departure in September.

And it now looks as if she will be bringing a separate discrimination claim against Jose Mourinho!

Given the difficulties that Chelsea and Mourinho are currently having on the pitch, this will be a massive unwanted distraction off the pitch for club and manager.

The events date back to 8 August, when Chelsea played Swansea at home. Chelsea striker, Eden Hazard appeared to be injured towards the end of the game. With the player apparently in need of treatment, the referee waved Carneiro and the club physio onto the pitch – so the medics were obliged to comply and Hazard then left the pitch.

This meant that the hosts played a period of stoppage time with only nine players, after their goalkeeper had been sent off earlier in the game.

Mourinho was not impressed. Following the game, he publicly criticised the doctor and physio, and aired his discontent at them going onto the pitch to treat the player during the game, calling them “impulsive and naïve”.

Carneiro was subsequently banished from the bench and dropped from first team duties. She did not return to work in the period following this incident and then resigned from her employment in September.

Attempts to negotiate a settlement or pay out package for her, have so far failed.

So, what next?

A constructive dismissal occurs where the employer does not dismiss the employee, but the employee resigns and can show that they were entitled to do so because of the employer’s fundamental breach of contract.

It could be argued that by Mourinho publically criticising Carneiro, the implied duty of trust and confidence that is fundamental to the employment relationship has been breached and damaged. As a result, this along with other enforced changes to her normal role meant Carneiro had no other option but to resign in response.

Albeit Mourinho was cleared for using discriminatory language following an investigation by the Football Association, this will not be determinative of any separate tribunal claim that may be brought against him.

Under discrimination law, an individual employee can also be named as a party in the tribunal proceedings, as well as the employer. This means that the Chelsea manager himself, could be personally liable to pay compensation to Carneiro if successful at tribunal with a claim for sex discrimination or victimisation.

Unlike for constructive or unfair dismissal, the compensation that can be awarded for a discrimination claim is uncapped, so damages can be large.

From receipt of the claim and under normal tribunal rules, Chelsea and/or Mourinho will have 28 days to formally respond and file their defences to the tribunal (unless there is reason to grant an extension).

It is likely that with the claim the tribunal will also set out a timetable for how the claim will be managed moving forwards, including relevant dates. This would cover issues such as disclosure of documents, exchange of witness statements by the parties and dates for the tribunal hearing itself.

To avoid scoring what looks to be an inevitable own goal, Chelsea and Mourinho will more than likely want to settle this claim to avoid having to go through with what would be a very public tribunal hearing, continuing negative publicity, mounting legal costs and what could end up being a sizeable pay out to the former club doctor.

It’s also worth noting that this claim could be a contributing factor in deciding Mourinho’s own fate as to whether or not he will still be Chelsea manager and an employee of the club come the end of this season. One thing’s for sure the clock is ticking!

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