So what lessons can employers learn?
The incident giving rise to the claims occurred in August 2015 when Dr Carneiro ran on to the pitch during Chelsea’s clash with Swansea to treat injured Chelsea player, Eden Harzard.
She alleged that Mourinho had shouted the Portuguese phrase “filha da puta” at her, which apparently means “daughter of a wh***”. Dr Carneiro’s barrister argued that Mourinho used “the word ‘filha’ because he is abusing a woman” and “because she was the only female pitch side” at the time.
It was also alleged that Mourinho stated that he did not want Dr Carneiro on the bench but did not make the same demand about Jon Fearn, Chelsea’s club physio, who had been first to run on to the pitch to treat Hazard.
Chelsea and Mourinho denied any wrongdoing. Whilst Mourinho accepted that he frequently used the phrase “filho da puta” meaning “son of a wh***”, his defence was argued that there was no sexist connotation to the phrase which he considered to be similar to saying “f*** off”.
Interestingly, the FA ruled last September that Mourinho’s words did not constitute discriminatory language. However it seems that Chelsea and Mourinho concluded that settlement was a better option than to continue to defend the claims.
What is of interest to employers is the fact that Mourinho made the alleged comment in Portuguese. Dr Carneiro understood the comment but others may not have. It raises the question about the use of foreign languages in the workplace and what, if any, action employers can take to protect the business and prevent such discrimination arising, particularly where inappropriate comments are made in a language which is not widely spoken by the employer or its workforce.
In the recent case of Kelly v Covance Laboratories Ltd, an employer’s instruction to a Russian employee not to speak Russian at work was not deemed to constitute direct race discrimination given the instruction arose as a result of concerns about the employee’s behaviour at work and a fear that she was an animal rights activist who potentially posed a risk to its employees, some of whom had previously been assaulted by such activists.
However a blanket ban on employees speaking in their native language if not handled correctly, could amount to discrimination on the grounds of race or national origins.
Whilst the parties have settled Dr Carneiro’s claims, resolution has not been cheap. The terms of settlement remain confidential and it has been reported that the total settlement could have been in the region of £5 million.
Whilst most employers wouldn’t face claims at quite this level, discrimination claims are costly. There is no cap on the level of compensation that can be awarded and career long losses may result. Claims for injury to feelings also apply and the manner in which the employer treats a complaint about the behaviour (or lack of an adequate investigation) can result in the award being increased or a further award of aggravated damages being awarded.
Discrimination claims can also be brought against individuals, not just the employer, as in the current case. No details have been revealed as to whether Mourinho has contributed to the settlement personally.
The football club also issued an unreserved apology to Dr Carneiro and her family for any distress caused. Mourinho has not apologised as part of the settlement.
Whilst employers have a potential defence when an employee commits an act of discrimination, this will only be successful if they have taken demonstrable steps to prevent discrimination from occurring in the first place. An equal opportunities policy is a good start but an Employemnt Tribunal would expect employees to have received equal opportunities training and managers to have received training on how to tackle inappropriate behaviour and how to deal with such claims, along with evidence of robust management should discrimination occur.
Lupton Fawcett’s employment law training days are an ideal, cost-effective way to ensure that managers and employees have received such training, not only on discrimination issues but also on other employment issues which they may face on a day to day basis to minimise the risk of litigation.
Further information is available about our training day in Leeds on 17 June and in Sheffield on 22 June below to avoid scoring an own goal.
For further help or advice, please contact Alexandria Evans.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.