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Eva Carneiro lodges claim for constructive dismissal against Chelsea FC

View profile for Martha McKinley
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Eva Carneiro lodges claim for constructive dismissal against Chelsea FC

Things appear to be turning from bad to worse for Chelsea Football Club and Jose Mourinho. The club has endured a torrid start on the field and slumped to mid table, following the title success last season.

The team's poor form on the pitch appears to have stemmed, in part, from an incident back in August in which Chelsea’s club doctor Eva Carneiro and head physiotherapist Jon Fearn ran onto the pitch to treat an injured player in the dying moments of the season opener. In his post match press conference, Mr Mourinho publicly undermined his medical team describing their actions as “naïve” and “impulsive”.

It is understood that following the incident, Dr Carnerio and Mr Fearn were demoted from first team duties and removed from the bench.

In or around September of this year, Dr Carneiro left her role with the club and was reportedly considering her legal position. There has apparently been “off the record” discussions between the club and Dr Carneiro’s legal team but no resolution could be found. As a result Dr Carneiro lodged her claim for constructive dismissal at the employment tribunal last week.

In order to succeed with a constructive dismissal claim, the burden is on Dr Carneiro to show that the premier league outfit committed a fundamental breach which entitled her to resign. It can be a difficult claim to succeed with, principally because Dr Carneiro must show that the breach went right to the heart of the contract, leaving her with no option but to resign. It is worth noting that this burden is particularly high and only a small number of these claims actually succeed at a tribunal final hearing.

Constructive dismissal claims are often determined by whose version of events the tribunal judge believes on the day. The more witnesses Dr Carneiro can call upon and the more compelling she can be on the witness stand, the greater her chances of success will be.

This week we learned that Dr Carneiro is about to lodge a second claim against Jose Mourinho himself. This differs from the constructive dismissal, in that Carneiro is alleging that Mr Mourinho personally discriminated against her on the grounds of her gender and that he victimised her as a result of her internal complaints of discrimination. Dr Carneiro was one of, if not the only, notable female figure on a premier league bench in what remains a male dominated arena. It is likely that this will set the context for her discrimination and victimisation complaint.

A key difference between a discrimination/victimisation and constructive dismissal claim is that if Dr Carneiro succeeds then Mr Mourinho can be held personally liable for compensation. Unlike a constructive dismissal claim, compensation for discrimination and victimisation is uncapped, exposing Mr Mourinho to a liability of tens of thousands, if not hundreds of thousands of pounds.

A tribunal final hearing is likely to be listed to take place in the coming months and it will be interesting to see how this develops as it is a story which is never far from the headlines.

It will receive a lot of media attention if Mr Mourinho has to undergo tough cross examination on the witness stand. As we have seen from his recent interviews, he doesn't always keep his counsel when faced with difficult questions. Although, we don’t know exactly what has happened behind closed doors at Chelsea, it could be a sensible move for the club, and indeed Mr Mourinho, to seek a settlement of the claims before they reach the tribunal to avoid the inevitably high profile proceedings.   

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