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Chelsea FC, along with former manager, Jose Mourinho, appear to be heading for a full hearing at the employment tribunal over claims raised by ex-team doctor Eva Carneiro.

Readers of the sports press (and this blog) will recall that Carneiro was given a very public dressing-down by Mourinho during Chelsea’s first game of the season at home to Swansea back in August. Mourinho berated the doctor for attending to a player when he felt the injury was not serious enough (and of course the game wasn’t going his way). Mourinho accused Carneiro of being “impulsive and naive” and failing to “understand the game”. The incident was subject to a great deal of public attention and Carneiro was notably absent from the touchline during subsequent games. Mourinho was, in fact, cleared of using discriminatory language towards Carneiro following an investigation by the Football Association, which caused further controversy after Carneiro revealed, perhaps surprisingly, that she had not actually been spoken to personally during the investigation, nor indeed asked to provide any statement. Comments on the adequacy of such an investigation in an employment context are perhaps too painfully obvious to mention.

What is interesting is that Carneiro decided to tender her resignation, citing constructive dismissal. Constructive dismissal is the term used where an employee resigns in response to their employer’s conduct in breach of an important term of their employment contract (whether it is an express or an implied term). Although the test is contractual the most common basis of a constructive dismissal claim is unreasonable conduct on the part of the employer said to be in breach of the implied term of “trust and confidence”. The employer's conduct is often referred to as a “repudiatory breach” which the employee is entitled to accept by putting an end to the contract. Generally speaking, for a constructive dismissal claim to succeed, the employee needs to show that:

  • their employer was in repudiatory breach of the employment contract;
  • she/he resigned in response to that breach; and
  • there was no significant delay before resigning in response to the employer's breach.

Subsequently, a separate, but connected, personal legal action against Mourinho was raised. It is rumoured that this relates to alleged victimisation and discrimination (the former referring to unfavourable conduct by reason of the employee having done something connected to the protections in the Equality Act such as make a complaint of discrimination). For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee’s acts were done with the employer's knowledge or approval. So, an employer can be “vicariously liable” for discrimination or victimisation committed by an employee in the course of employment. However, there is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description. In cases where the employer avoids liability, establishing that it took all reasonable steps to prevent the discrimination or harassment from occurring, the employee who committed the discriminatory act may still find themselves personally liable. Where employee and employer are held liable for the same discriminatory act, they are jointly and severally liable and the tribunal has no power to apportion liability. This, of course, means that both Chelsea and Mr Mourinho, personally, may be in the firing line.

It has been widely reported that recent attempts at mediation between the parties have failed to produce a resolution and it seems likely that the case may well go to a full hearing, expected to be held in June. This hearing would be held in public, which is perhaps the biggest concern for both Chelsea FC and Mourinho. The hearing could see Carneiro, Mourinho and representatives from Chelsea called to appear as witnesses and documentary evidence exhibited. Members of the public and press alike are likely to be free to attend and listen to the evidence heard and the judgment delivered. Chelsea’s reputation has taken a bit of a pounding in recent times, with a long list of controversies. Meanwhile, it has been reported that Mourinho’s potential Manchester United move could hinge on the outcome of the tribunal.

We will be keeping a close eye on this one. In the meantime, if you have any concerns in relation to the above issues, we would be happy to talk them through with you. Please get in touch with any member of the Stronachs Employment Team.

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