Mourinho and the medic: has Jose a legal challenge to answer?

According to the recent media storm, Eva Carneiro, Chelsea’s suspended club doctor, could well be preparing legal action against her club employer.

Following the incident which saw her treat Eden Hazard in the 2-2 draw on the opening day of the season, neither she nor the first team physio, Jon Fearn have worked at the club. While not dismissed, both have since been replaced on the bench and banned from the training ground.

The event has sparked widespread condemnation of Chelsea manager Jose Mourinho’s staunch criticism of Carneiro and Fearn and his actions after the event. In his post-match interview with the media, Mourinho implied that his medical department did not “understand the game” and were “naïve to leave [the team] with eight outfield players on a counter-attack.”

The sexist overtones to this are palpable – the suggestion being that women are not simply knowledgeable about the game. Mourinho’s response has, however, been far from well received.

Jose Mourinho Chelsea football manager
Mourinho: open to a sexual harassment claim?

The Premier League doctors group backed Carneiro, calling her treatment “unjust in the extreme.” They suggested that in this case the medical care and welfare of the players “appeared to be secondary to the result of the game.”

The generally accepted position is that Premier League doctors like other doctors must adhere to the same General Medical Council (GMC) guidelines on “safety and quality”, which advise that they are obliged to “take prompt action if you think that patient safety, dignity or comfort is being compromised”. Simply put, they are rightly required to put the principles of the GMC above the wishes of their employer.

Medical staff on the day were responding to the referee’s instruction to treat a player who was on the ground. In such circumstances, given her duty of care, it is difficult to see what Carneiro could have done differently or did wrong.

In the employment context her treatment is akin to a type of restricted duties or suspension. The key factor being the apparently wrongful nature of such extreme action. Indeed, in such circumstances where an employee has been unlawfully suspended from their job and publicly condemned by her employer you could envisage a potential claim based on breach of contract such as unfair constructive dismissal and/or sex discrimination.

Given that her role has been severely diminished for no apparent good reason this would amount to a fundamental breach of contract entitling her to resign and claim constructive dismissal under the Employment Rights Act 1996. She has since been replaced by an all-male medical team and together with the discriminatory comments made by Mourinho a sexual harassment and discrimination claim would be likely under the Equality Act 2010. The attendant discrimination claims would also act as further fundamental breaches of contract bolstering any constructive dismissal claim and entitling her to uncapped compensation in an employment tribunal.

FIFA is currently planning a new code of practice in the wake of this incident. Even Mourinho may have gone too far this time.

Elaine Banton is a barrister at 7BR Chambers 

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