Discrimination at work – can you be held personally liable?

It’s been a poor few weeks for Jose Mourinho and Chelsea. Coming off the back of a run of losses and now languishing mid-table, the last thing the football club needed was for an ex-employee to sue them – but it now looks like that’s just what’s happening.

Eva Carneiro, the employee who made headlines back in August when apparently she was given a very public dressing-down by Mourinho pitch-side and subsequently dropped from the medical squad, is now entering into a legal battle with her former club. In the last few days there have been news reports that she is about to start proceedings in an Employment Tribunal claiming that she was discriminated against, and was essentially forced to leave the club – otherwise known in HR circles as ‘constructive dismissal’.

However, what makes this case especially newsworthy is that she is said to be planning not just to sue her former employer for alleged discrimination, but also Jose Mourinho personally.

You might be wondering if this is, in fact, possible. Well, we can assure you that it is.

Under equality law, a discrimination or victimisation claim can in fact be brought by an employee against another individual employee rather than just the employer. But remember, as an employer this doesn’t mean you are safe, as the legal starting point is that anything done by the individual employee is also seen as having been done by the employer regardless of their knowledge or consent.

In many cases, employees would simply make a claim against their employer. But this is a stark reminder for both employers and managers that according to the law, acts of discrimination against an employee can be taken as the responsibility of both the individual who did them and the employer. And both the  employer and the individual employee will be on the hook for any compensation awarded to a successful claimant and will need to fight it out amongst themselves who pays what proportion.   Normally the employer is more likely to be able to pay an award of compensation so claims against individuals are rare, but clearly not in this case.

The only defence for an employer to stop them being automatically liable for the acts of their employee is if they can show that they took all reasonable steps to stop the individual from discriminating.

All the more reason for employers to have a robust set of employment documents to refer to or in fact deliver Equality training to all staff. A proper Staff Handbook with a set of agreed company policies (referred to in a contract of employment) will help employers to establish proper boundaries for employees. And in situations like Chelsea have found themselves in, this would ensure a tribunal understands that they put everything in place to ensure their employees would not discriminate. This sort of evidence will also help in any wrangle over whether the employer or the individual employee should ultimately pay. Having a policy is the best starting point, but actually demonstrating that the policy is understood and adhered to is equally important.

Discrimination isn’t all that Caneiro is said to be going after Chelsea for though. She’s also claiming that she was pushed out of the football club, and as such was constructively dismissed.

What is constructive dismissal?

Essentially, if an employee feels unable to continue working for a company due to a serious breach of the employer’s contractual responsiblities, then could be deemed constructive dismissal. The breach has to be so fundamental that the employee can not continue working, and typically this will mean that the employee resigns or walks out very soon after the alleged breach occurs.

It is difficult for employees to prove, and therefore not very common; unfair dismissal and discrimination are often easier for employees to prove, and so most employee actions choose one of those instead.  Nevertheless if you are an employer you should be aware of the existence, and risks, of constructive dismissal.

And again, this is where keeping the right employment policies for all your employees is a good idea. Having a grievance procedure in place is your first line of defence against a constructive dismissal claim, as you will be able to demonstrate that employees could raise concerns with you without suffering any detriment. This should mean that issues can be nipped in the bud before they develop into a real problem for your business. Should you already have a grievance policy, effectively communicating this with your staff in writing is essential so that there can be no misunderstanding.

However, just expecting staff to stick to a procedure is not a golden ticket, you should try and ensure you deal with any perceived performance issues in a professional, prefereably private, manner, and not in the heat of the moment- that way hopefully you won’t say things you might regret.  Regular conversations with your staff to identify any potential issues before they become a reality is the real key here, using company policies as a written backup to refer to.

It looks likely that lawyers, and possibly a court, will decide whether Chelsea FC or Jose Mourinho are actually guilty of any of these claims; we certainly don’t have enough information to form an opinion. And we will probably never know just how much this episode has affected Chelsea’s shocking football results this season. But at least we can all learn from the experience, however it ends up.

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