Dr Eva Carneiro is a highly qualified medic who until very recently, held the position as first team doctor at Chelsea Football Club. Despite being in post from 2009 (much longer, it has to be said, than the average first team coach), Dr Carneiro felt compelled to leave her position after comments made by Jose Mourinho.
In the final moments of the game between Chelsea and Swansea on 8 August 2015, Chelsea were a player down having had their goalkeeper sent off. Following a challenge on Hazard – who took to the floor in apparent agony – Dr Carneiro and Chelsea’s team physio were called on to the pitch by the referee for treatment.
Following the match, Mr Mourinho expressed his dissatisfaction of his medical staff’s “hasty and naive” actions which had momentarily reduced his team down to 9 men on the pitch. Mr Mourinho said “even if you are a kit man, doctor or secretary on the bench, you have to understand the game”.
Dr Carneiro was promptly demoted and was no longer welcome to attend training sessions, matches, or even enter the team’s hotel. The later allegation that Mr Mourinho called Dr Carneiro a “daughter of a whore” has not been proved. Nonetheless, the stories hit the front pages and after reaching a bit of an impasse, Dr Carneiro decided enough was enough and called the final whistle on her time at Chelsea, resigning on 22 September 2015.
If BPE’s employment team were instructed by Dr Carneiro (I am waiting for the phone to ring) we would look at the following claims:
This would be the most likely claim Dr Carneiro could bring. It would require her to demonstrate that Chelsea Football Club had (by the actions of Mr Mourinho demoting her and allegedly swearing at her) fundamentally breached her employment contract. Dr Carneiro may say that Chelsea’s actions breached the duty of mutual trust and confidence. Bearing in mind Dr Carneiro wasn’t guilty of much more than fulfilling her duties as a doctor and responding to the referee’s invitation to enter the field, it’s very likely Dr Carneiro would succeed in this head of claim.
Turning to a likely award of compensation, as a well-paid professional, it’s likely that Dr Carneiro would hit the cap in compensation – currently £78,335 – for unfair dismissal pretty quickly. Because of this, its possible Dr Carneiro would bring an additional claim for sex discrimination on the grounds below which if successful, would potentially entitle her to uncapped compensation. She may also consider bringing a breach of contract claim in the high court for notice pay (which is not subject to a cap in compensation).
Dr Carneiro may consider that her demotion constitutes less favourable treatment on the grounds of her sex. This may be a much more difficult claim to bring given that Dr Carneiro’s colleague was also demoted following Mr Mourinho’s comments. However, given the widespread media coverage of sexism in football (and the alleged name calling) it wouldn’t be too much of a leap for Dr Carneiro’s lawyers to claim that her demotion was in part tainted by her sex.
If she succeeded in this claim, then she would be entitled to uncapped compensation plus an award of compensation – likely to be around to £12,000 – £18,000 mark – for any ‘injury to her feelings’.
Whereas the claim for constructive dismissal could only be brought against Chelsea football club, it is much more likely that the claim for sex discrimination would be brought against Mr Mourinho personally, as well as Chelsea – I for one would be queuing outside of the steps of the Tribunal to get a peek at Mr Mourinho’s witness evidence.
However, Chelsea’s deep pockets and the prospect of further significant reputational fall out means that this matter is not likely to be aired in public. A settlement is likely to be reached. It’s fair to say that this saga does nothing but to add fuel to fire of the adversity faced by women in football.
What does this mean for you or your business?
The above serves as a welcome reminder that it doesn’t matter whether you are the most senior manager or a junior member of staff, employers are vicariously liable for the comments or actions of their employees. Whether or not the comments are made in a high pressure post-match interview, or down the pub, employees can potentially rely on treatment they receive to launch employment claims.
What do you need to be doing now?
Ensure your managers and employees are aware of the principle of vicarious liability and that they recognise the potential seriousness of what is said in the heat of the moment.
These notes have been prepared for the purposes of this article only. They should not be substitute for taking legal advice.