Analysis

Chelsea employ clever legal tactics in Eva Carneiro constructive dismissal case

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42

Club’s failure to file defence is a shrewd move

lead

Former Chelsea doctor Eva Carneiro looks set for victory in her employment law claims against the Premier league football club, after they failed to file any defence.

But while it may seem like a massive oversight by the club, the failure has been described as “a wise tactical move” by PJ Kirby, a leading employment law QC at Hardwicke.

This year, the doctor has had a very public row with former manager Jose Mourinho for running onto the pitch to treat injured player Eden Hazard. After the game, Mourinho — who was sacked yesterday — described the medical team as “impulsive and naïve”.

The following month, Carneiro left the club and consulted London law firm Mishcon de Reya about making a claim against her former employer. An initial hearing at a Croydon tribunal was scheduled for the new year, where Carneiro’s lawyers were expected to request her reinstatement, as well as compensation for sex discrimination and personal injury.

Failing to fight these claims, Chelsea filed no defence with the London South Employment Tribunal. The deadline was yesterday, and the club did not ask for an extension. This has paved the way for the 42 year-old doctor’s success.

And why would Chelsea do this?

Legal Cheek spoke to Hardwicke barrister and avid Blues fan PJ Kirby QC, who believes that the failure to offer up a defence is far from a mistake. With no defence, the case will go straight to a remedies hearing as opposed to a contested hearing, avoiding the disclosure of documents and bad press attached to full-blown court proceedings.

This is not a common technique used in employment law proceedings, Kirby explains, but given Chelsea’s place firmly under the media spotlight, it’s a “wise move from a tactical point of view”.

With no defence offered up by the club, Carneiro will inevitably succeed in her claim.

The next stage is to decide what remedy she should be awarded.

There are a number of options open to the Gibraltar-born medic, who could be reinstated back to her original position — which may be a good idea now that Mourinho has been given the boot.

Alternatively, she could be re-engaged at the club in another role, which Kirby thinks is less likely. Or she could be looking at compensation, which, for a claim in constructive dismissal, is capped at just under £80,000 — less than John Terry earns in a week.

42 Comments

Anonymous

This makes no sense to me – if they wanted to avoid publicity surely they would just have settled out of court? Or is the suggestion that the court will award a less substantial settlement than what she was demanding and the difference makes it worth taking this route?

(9)(1)

Anonymous

So many clever people trying to emulate the “wise one” with the childish behavioral characteristic of blaming others when everyone, including the persons themselves, full well knows that only the “wise one is to blame.

(0)(1)

Not Amused

If loss is capped at £80,000, can they now just concede the claim and pay her the full sum now? They’ll surely be spending more than 80k on the legal fees for this brilliant tactical advice.

Isn’t that even more tactical?

(15)(2)

Anonymous

They might decide to pay EC whatever it costs to keep her from selling her story.

(0)(0)

Anonymous

If she is claiming sex discrimination (as described) then it is effectively not capped.

(11)(0)

Anonymous

basically the main point is that Chelsea do not want to gain even more bad publicity. Thanks LC.

(2)(1)

Anonymous

Would there be any bar on Eva then telling her story to the papers etc. under these circumstances ?

(0)(0)

Anonymous

Not unless a settlement agreement prevents her.

(0)(0)

Anonymous

jumped up medic, that’s all.

(7)(23)

Anonymous

I agree.

(2)(20)

Mr anonymous also

Jumped up medic ….what an absolute tosser of society you are.. Love to know what you do for a living

(5)(2)

Anonymous

I agree that Eva Carneiro is just a jumped-up medic.

(4)(20)

Mr Pineapples

I agree that you are a knob

(12)(2)

Mr Pineapples

Well said P

(4)(1)

badley

eva come back.You took our goals now that maurinho is gone

(1)(3)

Anonymous

The only person to blame for José acting as a complete idiot this season is Jose, even he knows that.

(10)(3)

Anabelle

This article makes no sense.

1) Isn’t the suit with Mourinho separate than the Chelsea one?

2) If yes, can he force it to go to open court where document will eventually be disclosed?

3) Or there is no lawsuit against Mourinho after all.

The article above makes this point unclear.

(2)(2)

Boh Dear

Claim will be against Chelsea FC and/with Mourinho as a named respondent. Mourinho would also need to file a defence but appears not to have done.

But yes, it is unclear if the suit vs Mourinho as an individual named respondent is continuing.

If successful (which now appears inevitable) both parties are jointly and severally liable for the final award. How this is apportioned will depend on how EC decides to enforce it with the ET having no power to apportion liability themselves.

(0)(0)

Anabelle

I forgot to ask:

The author mentioned “bad publicity” . Interesting choice of words. There’s been so much bad publicity already, nothing new there.

However, what is enclosed in these documents that would make it even worse.

Just curious.

(0)(2)

Pantman

Isn’t it just the risk that opens up, one way or the other. “He said this”, “She did that”… Who wants that all over the newspapers?

Chelsea can afford to take the hit of no defence, for the maximum payout.

(0)(1)

Anabelle

The maximum payout amount is peanuts. The issue has to do with what they don’t want to become public. And it’s not pretty.

(1)(1)

Anonymous

Max payout isn’t capped, therefore not peanuts.

#knowyouremploymentlaws

(2)(0)

Anonymous

Nobody reallt cares what happens to Eva, Mourinho, Chelsea FC etc. Just like they don’t care about your problems.

(0)(6)

Jackson

And yet you took the time to not only read the article, but write a comment.

You’re fooling no one.

(1)(0)

Anonymous

2 weeks to come up with that?

Impressive, bro.

(1)(1)

Anonymous

*really

(0)(1)

bardrunk

clever? obvious, pay up and move on and all things die down

(1)(0)

Anonymous

Aaah Eva. The days of a grumpy, fag smoking physio who looks like Oliver Reed on a bad day, equipped only with a magic sponge, are definitely over.

Come to Arsenal. We’d respect your medical skills.

(6)(5)

Mr Pineapples

They have never looked that way. You sound like you are a bit of a card – but not clever enough to make that count

(0)(1)

Anonymous

According to the BBC Chelsea have filed a defence, which makes this article rather redundant!

(0)(0)

Anonymous

Yep

http://m.bbc.co.uk/sport/football/35137002

“Ahead of a first hearing on 6 January, Chelsea filed their defence before the midnight deadline on Thursday.”

Have we missed something?

(0)(0)

Hmmmmm

As this is a law website, would it be too much to expect the reporter to do some basic legal research before posting the article? Eva Carneiro has brought a discrimination claim. There is no cap on damages.

(4)(0)

Anonymous

Sorry LC your wrong. If the fundamental breach that triggered the constructive dismissal was an act of discrimination (as i believe she is alleging), the award is not subject to the statutory cap.

(1)(1)

Anonymous

“You’re” not “your”

(0)(1)

Anonymous

Eva is hotter than Briana.

Trufax

(8)(3)

Anonymous

Eva is hotter than Briana.

Trufax

(5)(3)

Proudtwat

But not as hot as me.

(0)(0)

Anonymous

U r stunning 2 b fair. Obvs.

(2)(1)

What?

LC have you ever heard of vicarious liability? I guess not. If she’s claiming discrimination there’s no ceiling for this as such the award is not capped as you stated.

(1)(0)

Anonymous

Eva was the special one.

Hubba hubba

(3)(0)

Anonymous

Is lord harley representing Chelsea?

(0)(0)

Anonymous

Cos he can’t travel to london

(0)(0)

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