HM Insights

What's Jose's problem? Discrimination claims against individuals

In a nutshell

What’s it all about? Jose Mourinho is in trouble on and off the pitch – in addition to the Chelsea’s poor form, newspaper reports this week suggest that he is to be the subject of a claim from Eva Carneiro, the former team doctor, with whom clashed with earlier this year.
What do you need to know? According to reports, Mourinho is to be named as a respondent in an employment tribunal claim, in addition to the constructive dismissal claim raised by Carneiro against her former employers, Chelsea football club. It would appear that this must be a claim for discrimination, as this is the only type of employment tribunal claim in which an employee – rather than the employer – can be named personally.
Why should you care? It’s not just high profile football managers that face claims being raised against them. It is open to any claimant in a discrimination case to raise the claim not only against their employer, but against any individual who it is alleged discriminated against them. Further, any award made by the tribunal for discrimination is awarded on the basis of joint and several liability, meaning that – in theory – the claimant can choose to enforce the judgment and recover the award – in full - from the employee. It’s rarely done, but it’s something that employers and employees should be aware of.
Get in touch: If you would like to speak to someone about the issues raised, please contact Scott Milligan or find out more on our Employment law page.

Football Discrimination Employment Tribunal

In detail

Many people will recall the controversy in August of this year, when Jose Mourinho, manager of Chelsea Football Club, was less than happy when Eva Carneiro, a club doctor, and Jon Fearn, head physiotherapist, treated a player on the pitch. This resulted in Chelsea being temporarily reduced to nine men and Carneiro and Fearn incurred Mourinho’s ire.

Carneiro then did not appear again on the bench on match days, as she had done previously. This has, allegedly, led to her resignation and a claim for constructive dismissal against the club.

However, there has been another twist, in that it appears that Mourinho has, or will have, had a claim raised against him. This is not possible in a straightforward constructive dismissal claim as an employer is vicariously liable for the actions of its employees and the claim is solely against the former employer.

Whilst we do not know the details of the alleged actions, if such a claim has been raised, it must be in relation to allegations of discrimination. Under the Equality Act 2010, an individual can be named as a respondent in addition to an employer. This is, in practice, rarely done for a number of reasons. The primary reasons are often lack of awareness of this right, and secondly, money – it is much more likely, generally, that a company will be able to pay an award, particularly a large award, than an individual. Admittedly, this is not a concern if raising a claim against the millionaire Chelsea manager.

It should be noted that Mourinho has been cleared by the Football Association in relation to the making of discriminatory comments, albeit that this will not be determinative in any employment tribunal.

Despite this, by raising a claim such as this Carneiro will not only create a lot of publicity, but also oblige Mourinho to attend employment tribunal hearings unless a settlement can be reached. Which could, of course, become more likely due to Mourinho’s involvement.

Get in touch

If you would like advice on any aspect of the issues raised, please contact a member of our employment team or find out more on our employment law page.