It may seem unusual to the public that an individual (Jose Mourinho) has been named in proceedings against Chelsea Football Club (Chelsea) regarding the treatment of one of their employees. However, in the legal world, it is a common stance adopted in Employment claims involving an aspect of discrimination. Tactically, employees often name the individual as well as the Company.
The reason is as follows; there is a defence open to an employer that they have taken all reasonable steps to prevent an act of discrimination-known as the statutory defence. The position starts with the premise that Chelsea are vicariously liable for their employees, however, that is negated if the employee (Jose Mourinho) acts in a manner which is outside of the terms of his employment; a frolic of his own effectively. It arises if Chelsea can establish that the club took such steps as were reasonably practicable to prevent the employee acting in that manner. The club could point to training, or policies/procedures, they have adopted to educate their staff.
It could amount to a defence to the discrimination aspect of the claim. However, having named Jose Mourinho personally, the claim would remain against him-an uncomfortable position for the club. By naming Jose Mourinho Chelsea are aware that they could run the defence but it would not get them too far as the claim would still stand against their manager.
From a tactical point of view, and if settlement is in the minds of the parties, it puts Ms Carneiro in a much stronger position to have named both Respondents.
That aside, there are 2 aspects to Ms Carneiro’s claim:
1 . Constructive Dismissal
This stands against Chelsea only. The argument is that because of the acts of the club (Ms Carneiro’s employer) she was left with no option but to resign. If she can show that Chelsea have committed a repudiatory breach of her contract, forcing that resignation, then in the eyes of the law she would be seen as constructively dismissed. The current cap on this claim (compensatory aspect only) is £78,335.
Ms Carneiro will point to issues such as being removed from match day attendance, as well as the apparent reduction in her role in and around the club. Chelsea would need to justify that treatment objectively, and may point to issues such as breaches of the clubs social media policy, and similar treatment to other employees in line with club policy. The difficulty they will have is convincing a Tribunal that that treatment, in the football world, is reasonable when considered in the context of the employer/employee relationship generally.
The second aspect of Ms Carneiro’s claim appears to be sex discrimination; that is that she was treated detrimentally because she is female.
Ms Carneiro would need to identify a comparator. There are 2 options open to her; the first is to identify a hypothetical comparator i.e. someone of a similar level and in a similar role, who would not have been treated in that manner. The second is to identify an actual comparator i.e. a colleague, in similar circumstances, who was not treated in the same manner. It appears that Ms Carneiro’s has a ready-made comparator, the male Physio/Doctor also involved in the incident. If she can point to the treatment of the two employees and show that she was treated detrimentally, as well as linking that to her sex, then she should be able to establish a discrimination claim against Chelsea, and Mr Mourinho personally.
There are no caps on awards in discrimination claims. It would be open to Ms Carneiro to claim the basic award, as well as compensation for loss of earnings (provided she continues to remain unemployed-and subject to her duty to mitigate).
It is common that cases of this nature would settle prior to reaching the Employment Tribunal. In light of the publicity that still seems a realistic possibility.
It should be noted that with cases of this nature, discussions are likely to have already taken place behind the scenes to resolve it. In this situation “without prejudice discussions” have proved unsuccessful, either because one of the Parties are not inclined to enter into a settlement, or because the respective positions on settlement are too far apart. One could speculate that it is on that basis that Ms Carneiro has lodged a claim at the Tribunal. Tribunal claims are subject to strict time limits, and the claims mentioned above would need to be lodged within 3-4 months of an incident the protect her position.
The case provides some interesting issues to consider, quite aside from the high profile nature, it is a stark reminder to individuals that they can, in certain circumstances, face personally liability for their actions within an organisation.
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