Following on from my recent blog concerning Chelsea Football Club’s former doctor, Eva Carneiro, reportedly bringing a claim for constructive dismissal against them, there are now reports that Ms Carneiro is to issue a claim personally against Chelsea manager, Jose Mourinho. How is this possible?
In UK employment law most employment law claims e.g. unfair dismissal or constructive dismissal can only be brought by the employee against the employer. There are several claims however, which can be brought against a fellow employee, namely a claim related to unlawful discrimination or where an employee has been victimised by a colleague for whistleblowing at work. It is not definite which of these claims Ms Carneiro intends to bring against Mr Mourinho but given the allegations of discriminatory comments made Mr Mourinho following the incident during the match against Swansea City FC on 8 August 2015, it seems likely to be a claim of unlawful discrimination.
Does bringing a claim against the individual let the employer off the hook?
No, the Employer can also be liable for the discriminatory acts of its employees if they occur during the ‘course of employment’ – although the employer will have a defence if it can show that it took reasonable steps to prevent the employee from performing the discriminatory act or acts of that kind.
In practice, most employees who issue a claim against individual will also issue the same claim against their employer at the same time.
What are the benefits of bringing a claim against the individual?
It may seem like an unnecessary duplication to bring essentially the same claim against a colleague as well as the employer but doing so has several advantages. First, it means if the Employee is successful with the claim then both the employer and colleague will be ‘jointly and severally’ liable for the compensation awarded. This means the successful claimant can pursue either one for the full amount of the money. This is particularly usual if one party becomes insolvent – one imagines this is not likely to be a risk with either Chelsea or Mourinho.
Secondly, issuing proceedings against the individual is likely to be personally embarrassing for them. They face having to attend an Employment Tribunal and be accused, in public, of being discriminatory. Individual respondents are often managers or senior staff and therefore this will frequently be very damaging for their reputation and the reputation of the organisation as a whole. Tactically, senior employees also are likely to have more influence on the organisation and may, because of the fear of embarrassment and/or personal financial liability, exert pressure on the business to settle the claims. It is unlikely that Chelsea would want their team manager taken away from his duties to stand individually accused of discrimination before an employment tribunal.
Thirdly, it can be that issuing against both parties offers the potential to ‘divide and rule’. It may be that the employer opts to defend itself against the claim for discrimination by arguing that the employee alone is responsible. An employer might argue the colleague did not act in the course of employment (e.g. the act was unrelated to the employment because it occurred in a purely social context between the colleague and the claimant) or, as mentioned above, that they had taken reasonable steps to prevent such discrimination occurring. In both these scenarios, the employer might ultimately find itself defending the claim by means of what effectively amounts to pointing a finger at the accused employee and saying “it’s their fault not ours”. Sometimes this line of defence can even lead to the employer parting company with the accused employee. This may occur if the employer wishes to demonstrate that it condemns the employee’s actions or as a result of the relationship breaking down during the course of the litigation.
What does this mean for Jose?
There is no question that if Ms Carneiro does in fact bring a discrimination claim against Mr Mourinho this will be a further headache for both him and Chelsea at a time when they are already reaching for the aspirin. There is a great deal of speculation regarding Mr Mourinho’s future employment at Chelsea, so it is not impossible that he will have left Chelsea by the time the Tribunal proceedings are brought to a close. In theory, Chelsea might choose to settle the claim brought against them and leave Mourinho to carry on and fight it out alone against Ms Carneiro. In truth, the smart money is probably on the claims being settled well before it gets to that point. We shall see.
James Haley – a solicitor with specialist employment law firm Just Employment Solicitors