From the Pitch to the Tribunal.

By Andrew Knorpel 05 November 2015

Recent performance hasn’t been too good and the manager needs to show that he’s in charge.  Removed from first-team duties, the former Chelsea FC doctor Eva Carneiro was publicly labelled “naïve” by her boss Jose Mourinho and felt that she had no option but to resign.

In an attempt to avoid further unwanted and damaging adverse publicity, you would expect the parties to attempt to negotiate a settlement.  Apparently, they tried but failed and now it is reported that Ms Carneiro will be bringing a claim for constructive unfair dismissal.

But that’s not all.  It has also been reported this week that she will be suing Mr Mourinho personally for sex discrimination and victimisation.  Although an FA enquiry (to which Ms Carneiro says she was not asked to contribute) has already cleared him of allegedly using discriminatory language against her on the pitch, the discrimination allegation might well relate to this or the comments he made to the press after the match.

Where it is alleged that an individual employee has been responsible for the commission of a discriminatory act, it is not unusual for that individual to be made a respondent to tribunal proceedings as well as the employer.  If the tribunal finds both the employer and the employee liable for the same act of discrimination, then any resulting award of compensation can be made jointly and severally against both the employee and the employer.  For example, in the case of London Borough of Hackney v Sivanandan and others, the Respondents (including a number of individuals) were held jointly and severally for an award of over £420,000 for race discrimination.  This means that, if the employer can’t or won’t pay up, the claimant can demand that the respondent employee pays the whole discrimination award.

Compensation for constructive unfair dismissal is subject to the statutory cap, currently £78,335 or 52 weeks’ gross salary (which ever is lower), together with a basic award calculated in the same way as a statutory redundancy payment.  However, if Ms Carneiro was able to prove discrimination, then any financial losses arising out of that act of discrimination would be uncapped.  She would also be entitled to receive an award for injury to feelings which, in light of the public nature of her demise, might well fall in the top Vento band of £18,000 to £30,000.

Although your workplace may not be as public as a Premier League football pitch, a small investment in up-to-date equality policies and training for your staff from time to time will not only reduce the likelihood of discrimination at work and any consequent liability for claims, but may in turn help protect your organisation’s reputation.

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