Headlines were made at the beginning of this month when it came to light that Jose Mourinho, manager of Chelsea FC, would be named as an individual respondent to an employment tribunal claim filed by the club’s former first-team doctor, Dr Eva Carneiro. Reports suggested that Dr Carneiro would pursue claims of constructive unfair dismissal and sex discrimination, following a well-publicised incident at a match in August. This case highlights the considerable risk faced by individual respondents in such matters – an issue which receives surprisingly little attention given the high stakes involved.

In this case, Dr Carneiro and a male colleague ran onto the pitch during the final minutes of a match to assist an injured player. Mourinho is alleged to have made derogatory, potentially sexist remarks to Dr Carneiro in the heat of the moment, and both Dr Carneiro and her male colleague were subsequently demoted. Dr Carneiro eventually left the club.

The case is by no means clear cut: for example, Dr Carneiro’s male colleague was also demoted, and her demotion may have been related to social media posts published by Dr Carneiro about the incident. In any event, given the potential reputational damage to both the club and Mourinho, the case is unlikely to ever reach an employment tribunal - we would expect the parties to reach an out of court settlement. However, the case does highlight an important issue: when can an individual be personally liable for an act of discrimination, and what are the risks if they are?

Under the Equality Act 2010 (the “Act”), an individual can be personally named as a respondent to a discrimination claim and can be personally liable for discrimination committed by them in the course of their employment. Given that there is no cap on the compensation which can be awarded in a discrimination claim, the financial risk to the individual respondent is potentially very significant (though perhaps not to Mourinho).

There are some further knotty and seldom reported issues in relation to individual respondents. For example, if the employer is able to avoid liability (for example by demonstrating that it took reasonable steps to prevent the discrimination from occurring) the individual respondent may still find themselves personally liable. Furthermore, the fact that a claimant has entered into a settlement agreement with the employer will not, depending on the scope of the agreement, prevent them from suing a respondent employee.

Clearly, the ability to bring proceedings against an individual respondent should be a powerful deterrent to individuals against unlawfully discriminating against colleagues, provided employees are made aware of this. Employers would therefore be wise to ensure that all of their staff are aware of this potential consequence. This can be done by ensuring that clear written policies relating to discrimination and harassment are in place which specifically flag this risk, and that relevant training is provided to staff on those policies and acceptable behaviour in the workplace.

Posted on 27/11/2015 in Legal Updates

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