There has been a significant amount of media coverage of the employment tribunal claim recently filed by Dr Eva Carneiro, former first-team doctor for Chelsea Football Club, who was demoted by the club’s manager, José Mourinho. Dr Carneiro has now left Chelsea and brought claims of constructive dismissal and sex discrimination. She has named Mourinho in his personal capacity as a respondent to the litigation meaning that, if her claim for discrimination succeeds, he will be jointly liable for any compensation awarded to her by the tribunal. As there is no cap on the compensation which can be awarded in a discrimination claim, this could potentially be very costly for the Chelsea manager.
The incident giving rise to Dr Carneiro’s claim was Mourinho’s criticism of her, and her male colleague, when they ran onto the pitch to assist a Chelsea player without Mourinho’s authorisation. It is unclear precisely what Mourinho said to Dr Carneiro in the heat of the moment but it was derogatory and was followed after the match by him commenting that his medical team did not understand the game. If these remarks had only been made to Dr Carneiro, her case for discrimination would likely be a very strong one. Here, the fact that her male colleague also came into the firing line will make it more difficult for her to establish less favourable treatment on the grounds of sex as there appears to be a male comparator.
It is undoubtedly the case that Dr Carneiro has been subjected to appalling discriminatory treatment during her career at Chelsea in the form of sexist chants by opposition supporters and it is also undeniable that she is one of very few female role models in football. These factors may have coloured how Mourinho’s decision to remove certain of her responsibilities has been perceived by the media and the public. If this case does not settle, the burden of proof will first fall on Dr Carneiro to establish an initial case of discrimination. If she overcomes this hurdle, it is possible that Mourinho may end up running an unattractive defence to the allegations whereby he admits to rude and heavy-handed behaviour towards all his staff, regardless of sex. Whilst this might not help his club from the perspective of the constructive dismissal claim against it, this kind of argument, if accepted by the tribunal, could get Mourinho off the hook when it comes to personal liability for discrimination.