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Legal Minds

10 June 2016 / by / in

A Very Chelsea Apology

News has emerged this week that Ex-Chelsea Football Club doctor, Eva Carneiro, has settled her claims for constructive dismissal and sex discrimination against Chelsea FC and Jose Mourinho. The reports are that the confidential settlement is likely to have exceeded the £1.2 million offer that was previously rejected by Carneiro, who was seeking career losses that might have been as much as £5 million. But would she ever have really obtained a settlement of that magnitude as a result of her claims?

Carneiro gave up a salary of around £280,000 per annum when she allegedly resigned as a result of Chelsea and/or Mourinho’s fundamental breach of her employment contract. She claimed that Mourinho called her a “daughter of a whore” when she ran on to the pitch (along with her male colleague) to treat Hazard at the request of the referee (but without Mourinho’s authority). She also claimed that Mourinho subsequently commented that his medical team did not understand the game, demoted both her and her male colleague from the bench, stated that they could no longer serve on match days, travel with the team, nor work with them at the training ground and suggested she work with the club’s ladies’ team. She also alleged she had been the victim of “regular sexually explicit comments from colleagues”, as well as “sexually explicit chanting” at matches.

In terms of Carneiro’s constructive unfair dismissal claim, it is probable that demotion without good cause was an express breach of her employment contract, in particular the implied term of trust and confidence. If Carneiro could demonstrate a repudiatory breach of contract and that she resigned in reliance upon that breach, it would be an unfair dismissal. It would be difficult to see how Chelsea could establish a potentially fair reason for this dismissal in these circumstances in order to defend such a claim. However, the only compensation that Carneiro would have received as a result of a successful constructive unfair dismissal claim would have been capped at the statutory limit of £78,355 and in terms of her discrimination claim, Carneiro would likely have had a much harder task.

Whilst Carneiro had clearly been subjected to dreadful discriminatory behaviour during her career at Chelsea in the form of sexist chants by opposition supporters, the difficulty that she would have faced in her claim for sex discrimination is that Mourinho’s comments immediately after the game did not appear to be directed only at her. If these remarks had singly been made to Carneiro, her case for discrimination would likely have been strong. However, the fact that her male colleague also came into the firing line would have made it more challenging for her to establish less favourable treatment on the grounds of sex, as her colleague would have been a male comparator. To counter these difficulties she could have argued that as the doctor, she was head of the medical team that went onto the pitch and Mourinho believed that the leader of the medical team should be a male (who would understand the nuances of the game) and could use a hypothetical comparator on that basis. However, the burden of proof would have fallen on Carneiro to establish an initial case of discrimination and it is likely that this would have been an uphill struggle. Further, even if she did in fact overcome this hurdle it is possible that Mourinho could have run an (albeit unattractive) argument in defence of the allegations that he was rude and heavy-handed towards all his staff, regardless of sex. Whilst this would not have assisted Chelsea’s own defence to the constructive unfair dismissal claim, this kind of argument could have saved Mourinho from any personal liability for discrimination.

Chelsea contended that Carneiro’s discrimination claim was to lift the statutory cap for constructive unfair dismissal cases. Whilst this may well have been the case in light of, the gruelling cross examination to which Mourinho would have been subjected as part of the ten day employment tribunal hearing and the potentially incriminating evidence that would have been made public, the confidential settlement figure that was reached may well seem like a small price to pay (especially when this is contrasted with the salaries of the Chelsea players themselves). Whilst Chelsea was also forced to issue a public apology to Carneiro as part of the settlement terms, no such apology was provided from Mourinho himself. We are sure that Manchester United eagerly await next season…

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