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Lessons from Carneiro v Chelsea and Mourinho

View profile for Phil Cookson
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Many people will have followed the developments in the proceedings brought by Chelsea FC’s former doctor, Eva Carneiro, against the club and former manager, Jose Mourinho, for constructive dismissal and discrimination.  Such interest may have come from being a follower of football (as I expect will be the case for the majority) and or an interest in employment law given the high profile status of what was, at the centre, a dispute concerning an individual’s employment. 

I have followed the case having an interest in both football and employment law but often came close to dismissing the relevance of the matter on the basis that it is clearly a case which is far from common (in respect of the involvement of high profile individuals and the circumstances giving rise to the claims).  However, on reflection and following the reported settlement of the proceedings, I believe there are some lessons for employers to learn from the case.  I will not seek to rehearse here the circumstances of the case as it has undoubtedly been widely reported in the media.  Instead, I will outline some key points which occurred to me and which employers might bear in mind, particularly regarding strategy if claims are brought against them.

Dealing with employees reporting complaints

A feature of Carneiro’s case was that she had suffered detriment despite being the “victim”.  Care should be taken when any employee raises a complaint that they have suffered a detriment at the hands of another employee, even more so where discrimination is alleged.  Whilst a balanced approach needs to be taken at the investigation stage, thought should be given to any actual or perceived disadvantage to the complainant in the aftermath of the complaint being raised.

The value of reputation

Whilst ultimately we do not know “why” the case settled and the terms on which it did, the speculation that the club were keen to settle to avoid damaging testimony being given in public may be somewhat justified.  When it comes to claims of discrimination, we often take instructions from employers that they cannot accept any such claims and, regardless of the facts of the case, they must “defend” their reputation. 

I certainly agree that an association with discrimination can be damaging, and may well lead to a robust defence being pursued, but employers should consider the damage that could be caused by that defence being played out in public.  How confident are you that alleged discrimination did not, or even may not, have occurred?

In this case, I do not know whether there was any realistic opportunity to settle matters earlier than when it did (it may have been the type of case that was always destined to get as far as the Tribunal hearing room) but if there were a chance to settle sooner, I wonder if the potential stigma attached to settling a claim early (even one of discrimination) would have been less detrimental than the damage which arguably the club have suffered in having to issue the apology they have, let alone paying the speculated £1.2m+ damages.

The value of a settlement

Further to my comments above, it is important to keep in mind the value of drawing a line under proceedings.  Whilst we do not know what figure Carneiro accepted to settle, it is perhaps reasonable to assume it was greater than the £1.2m offer which was reported as having been rejected.  Even at £1.2m, it would have been reasonably safe to say that is more than might have been awarded at the end of a successful Tribunal hearing.  In other words, the club paid “over the odds” to settle the case and it no doubt had good reasons for doing so.  Some of the reasons why this might be the case include, of course, limiting reputational damage (see above) but more commonly occurring reasons include saving time of managers and other staff and an assessment of the value of spending money on legal costs (which generally won’t be recovered) where they exceed the value of the claim.