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Chelsea F.C. & Mourinho V Eva Carnerio

26 January 2016

Remember when a visibly annoyed Jose Mourinho, now the Ex-Chelsea F.C. manager criticised Eva Carneiro, the Chelsea team doctor, for running on to the pitch to treat Eden Hazard?

Mourinho later told the media that Carneiro and the team physio Jon Fearn were “impulsive and naive” so to treat Hazard. Shortly afterwards Carneiro was effectively demoted and never reappeared on the Chelsea bench. On 22nd September Chelsea announced that she had left the Club. Not surprisingly, Carneiro has brought Employment Tribunal claims, reportedly for constructive dismissal and breach of contract plus a “separate but connected legal claim” for discrimination.

The constructive dismissal and breach of contract claims are fundamentally similar, being claims that Chelsea committed so serious a breach that it destroyed the employment relationship.

The employee must terminate the contract in response to that breach by walking out without notice, or give notice in circumstances in which she could have walked out.

Mourinho’s conduct Chelsea F.C. breached the implied term that an employer will not “conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between it and the employee without reasonable and proper cause”. From the TV pictures and media reports a Tribunal might be persuaded that by Mourinho’s conduct at the Club breached this key term.

If Carneiro can show that the principal reason for her dismissal was that she “carried out activities in connection with preventing or reducing risks to health and safety at work…”, the dismissal will be “automatically” unfair on one of the Health and Safety grounds in the Employment Rights Act 1996. Even so, there are no obvious potentially fair grounds for dismissal, such as misconduct, disobedience or incompetent. The likelihood therefore is that Carneiro will win her unfair dismissal claim one way or the other.

Rumours abound about the sex discrimination claim, likely to be based on an allegation by Carneiro that she was treated in the way she was because she is a woman. Would Mourinho and, vicariously therefore, the Club have treated a male Doctor in the same way? Was she treated less favourably than the male physio who also ran onto the pitch? Does she allege that by describing her conduct as “impulsive and naive” Mourinho engaged in unwanted conduct related to her sex which had the purpose or effect of violating her dignity and creating a humiliating environment?

All of this will go before the Employment Tribunal later this year. Intriguing for a Chelsea supporter, never mind for one who is also an Employment lawyer!

David Ludlow
Partner - Employment