More trouble for Jose Mourinho and Chelsea

It has been reported that former Chelsea team doctor Eva Carneiro has started employment tribunal proceedings against both Chelsea FC and Jose Mourinho personally, claiming sex discrimination and victimisation. Dr Carneiro is also reported to have commenced a claim for constructive dismissal, following her resignation in September after she was excluded from the Chelsea bench by Mourinho. This followed an incident where she, along with team physio Jon Fearn, went on to the field of play to treat Eden Hazard in the final few minutes of Chelsea’s game against Swansea, when the team were already down to 10 men.

There has been a wave of public and media support for Eva Carneiro, which she has acknowledged on Facebook. Based on what has been reported in the media, are her discrimination claims against Chelsea, and Mourinho in particular, likely to succeed, or does Dr Carneiro face a difficult legal battle? 

Less favourable treatment

The essence of a sex discrimination complaint is less favourable treatment than a man in the same situation. 

Let’s start by looking at what Mourinho actually said to the media after the game:

“I wasn't happy with my medical staff because even if you are a medical doctor or secretary on the bench, you have to understand the game. "If you go to the pitch to assist a player, then you must be sure that a player has a serious problem. I was sure that Eden didn't have a serious problem. He had a knock and was very tired." 

His criticism was not just of Dr Carneiro, but also of team physio Jon Fearn. Overcoming the first hurdle of showing differential treatment already appears to be difficult. 

He also described them both as “impulsive and naïve”. Even if that comment had been applied just to Dr Carneiro, it’s hard to see how that is directly linked to her gender. 

Some in the press have suggested that saying that they didn’t “understand the game” is of itself a sexist remark. That seems extremely harsh, especially when again the criticism was aimed at both of them. On its own, that comment is unlikely to shift the burden of proof. In any case, viewed in context, Mourinho’s comments show that he was motivated by concern at losing another player on the pitch. His team were already down to 10 men. The footage of the incident (which the Tribunal may be asked to view) seems to support his view that Hazard was not seriously injured or in need of immediate medical attention. Mourinho may have been wrong to criticise his medical team, but thankfully being wrong doesn’t amount to discrimination.

What about removing her from first team duties? An identical sanction was applied to Jon Fearn, meaning that Dr Carneiro wasn’t (at least initially) treated any differently than the man involved in the same incident.

Victimisation

Newspaper reports also suggest Dr Carneiro has complained of victimisation. Based on what? 

A person can claim victimisation if they are treated unfavourably for carrying out a protected act, such as by alleging discrimination.

Did Dr Carneiro submit any formal or informal complaint about discrimination following this incident, but before she was removed from the Chelsea bench a few days later? Nothing seems to have been reported.

Whilst Dr Carneiro has been subjected to some appalling sexist abuse at away grounds over the past 12 months, in respect of which she would have very legitimate cause to complain, it’s not clear whether she did so at the time. In fact, her public statements following the FA’s investigation would seem to suggest that no formal complaint was made. Whilst she may have said something behind closed doors, the link between that and her “demotion” would seem to be tenuous at best. 

The Special One 

Mourinho taking a hard line – even to the point of acting in an objectively unreasonable way – is unlikely to be enough. His disciplinary record tends to show that he wears his heart on his sleeve, and reacts to situations in an emotive way. Chelsea will no doubt put forward numerous examples of similar actions by Mourinho against other individuals at the club, all of which help to show that his behaviour can be explained by something other than gender.

The Red Zone

A potentially more dangerous issue for Chelsea and Mourinho emerges from one press report that Mourinho is said to have held reservations about Carneiro's role within the first-team squad since last year, on the basis that concerns had been raised that the dressing room dynamic was affected by the presence of a female. If that is true, it could have much more serious ramifications for the club. 

What about constructive dismissal?

Chelsea will resist that claim by arguing that Mourinho’s decision to temporarily remove her from the bench (something which he publicly accepted responsibility for at the time) does not amount to a repudiatory breach of contract entitling her to resign. You would hope that a right to sit on the bench was not written into her contract, or someone else’s position is likely to be under scrutiny.

In terms of impact on her position at the club, her role on match days, whilst the most public part of her job, would appear to be a small part of a much wider and more important role at the club. She was allowed to continue to perform the majority of her role as part of the medical staff, but not attend training sessions or her match day duties. She would seem to suffer no loss of professional skills. Whilst she may argue that the steps that were taken were damaging to her reputation in the short term, or that it was handled poorly by the club, resigning is a high risk strategy.

Mourinho opened the door to the possibility that both Carneiro and Fearn would be returning to the bench as early as mid-August. The club may argue that it was simply allowing things to cool down for a few weeks before both were allowed to return. Given that the Premier League is an arena where emotions run high, that might not be an unreasonable approach.

Is the fundamental truth that Dr Carneiro has simply fallen out with the manager? That happens seemingly every day at football clubs up and down the country. Players are dropped, ordered to train with the reserves, or even sold, all because the current manager loses faith in them. One of the often quoted principles of success in professional football is that the manager’s authority has to reign supreme.

Conclusion

So why has Dr Carneiro’s position following this incident received so much media attention? Because she is a woman? Because she has (presumably on legal advice) taken a more aggressive (and public) approach to her dealings with the club? 

By comparison, little mention has been made of Fearn. He was allowed to travel with the team to an away match in September, but not to sit on the bench. Whether Dr Carneiro resigned upon becoming aware of this is also unclear, but even then it could be argued that their roles with the first team were different. It was suggested that Fearn was going to be back on the bench for the game on October 17, but it’s not clear if he was. He remains employed by the club.

Given Chelsea’s recent results, it is possible that if Dr Carneiro hadn’t resigned and had allowed the internal process to run its course then not only may she still have a job, but she would be back on the bench. And in a few weeks time perhaps even alongside a new manager…