A Bridge Over Troubled Waters…?

The recent high profile dispute between Ms Eva Carneiro and Chelsea football Club has now culminated in Ms Carneiro issuing employment tribunal proceedings.  Whilst the details remain sketchy, reports are that she has raised complaints against the Club (as her ex employer) for constructive unfair dismissal and sex discrimination.  She also appears to have named José Mourinho (the manager) personally in her discrimination complaint.  These claims have a potentially high monetary value as there is no limit on the compensation that can be awarded for a successful discrimination complaint; of course, the value of the negative publicity could be priceless.

The background to this claim being issued was a very public dispute between Mr Mourinho and Ms Carneiro; on 8 August 215, the first day of the current Premiere League season, Ms Carneiro, as the first team doctor, and her male colleague, the head physiotherapist, ran onto the pitch to treat one of the Chelsea players (Eden Hazard) who was apparently injured.  She was waved onto the pitch by the referee for this purpose.  Mr Mourinho disagreed with her decision as it left Chelsea with only 9 players (as they were already down to 10 men at the time) and expressed this to her in no uncertain terms. It is not entirely clear exactly what was said to her on the pitch, but Ms Carneiro has consistently maintained it was derogatory.

Thereafter, Mr Mourinho publicly criticised her decision calling her “impulsive and naïve”.  He went on to say that “Whether you are a kit man, doctor or secretary on the bench you have to understand the game”, clearly suggesting that Ms Carneiro did not.  

Subsequently Ms Carneiro was dropped from first team duties and ended up working with the reserves and the youth team.  According to reports, she was banned from attending first team matches, training sessions or even attending the team hotel.  In other words she was, to all intents and purposes, demoted as a direct result of this dispute.  Ms Carneiro resigned on 22 September 2015.

The issue was investigated by the FA who cleared Mr Mourinho of making any discriminatory comments.  This was subject to yet further controversy, however; Ms Carneiro has publicly criticised the investigation on the grounds that she was not spoken to about the incident during the investigation nor was she asked to provide any sort of statement or otherwise comment on the allegations.  She commented that “I was surprised to learn that the FA was allegedly investigating the incident of 8 August via the press... I was at no stage requested by the FA to make a statement. I wonder whether this might be the only formal investigation in this country where the evidence of the individuals involved in the incident was not considered relevant. Choosing to ignore some of the evidence will surely influence the outcome of the findings.”

In terms of the claims which she is now bringing in the employment tribunal, it has been widely reported that she is alleging constructive unfair dismissal and unlawful discrimination on the grounds of her sex by the Club and Mr Mourinho. 

Depending on what emerges during the proceedings, Ms Carneiro may well struggle to succeed with the discrimination part of her claim; if, for example, the Club and Mr Mourinho can demonstrate that her male colleague was also treated in the same way, it will be difficult for Ms Carneiro to prove that any less favourable treatment was on the grounds of her sex.  Of course, if her male colleague was not subject to the same treatment, her claim may well have merit; Mr Mourinho’s comments about her naivety and lack of understanding of the game do not, at least at first blush, appear to be the sorts of comments which would have been directed at male medical staff in similar circumstances.

Ms Carneiro found herself in an impossible position; the interests of her patient (the player) and the Club (based on Mr Mourinho’s views) appear to have been directly contradictory.  In our view, it would be a brave tribunal that would be prepared to find against Ms Carneiro for putting the needs of her patient above the instructions of her employer, given her obligations as a medical professional.  What’s more there is an argument that Ms Carneiro was also obliged to act in this way as she was bound to follow the instructions of the referee (who waved her on) in this scenario. Given the treatment which she allegedly received as a result of her actions, not least, her demotion and the very public criticism from the manager, she appears to potentially have strong grounds for a successful constructive unfair dismissal complaint.

Unless a settlement can be reached, this is a claim that it likely to run and run with the full glare of the media spotlight upon it.