Claims against Mourinho and Clarkson show risk of personal liability
By Andrew Gilchrist, director and head of employment at Lupton Fawcett Denison Till
WHAT do Jose Mourhino and Jeremy Clarkson have in common? On the face of it, aside from being pretty wealthy and occasionally outspoken, not very much.
However, following recent reports in the media, it seems that they are now both being personally sued in the Employment Tribunal. This is fairly unusual, as most claims in the Employment Tribunal are brought by employees against their employers. However, there are some claims, such as discrimination, which can be brought against not only the employer but also its employees.
Eva Carneiro, who was previously a member of Chelsea FC’s medical team, issued proceedings against Chelsea FC for constructive dismissal and it was later reported that she had also brought proceedings against Jose Mourinho personally.
Oisin Tyman, producer of BBC TV’s Top Gear, is also reported to have brought an employment claim against Jeremy Clarkson in respect of the well-publicised incident which resulted in Clarkson’s departure from the BBC.
Why have Ms Carneiro and Mr Tyman issued proceedings against their colleagues rather than simply their employers? The short answer is that it probably strengthens their negotiating position.
Most employment claims are settled before an Employment Tribunal hearing, and it is unlikely that Messrs Mourinho and Clarkson will want to give evidence (or, more particularly, be cross examined by a barrister) at an Employment Tribunal hearing. As they are very high profile, these cases are newsworthy, which means that they will continue to be reported until they go away.If the claims succeed, the employees named in the proceedings are personally liable for the compensation. In practice, if an employee is found to be liable, his/her employer will often pay the compensation. However, this is not always the case. As compensation for discrimination is unlimited, the threat of an employee being personally liable can be very real, as he/she may not be able to pay the compensation.
This is unlikely to be the case for Messrs Mourinho and Clarkson, as they are both multi-millionaires. The greater threat for them is damage to reputation, as in Clarkson’s case the claim is that he is guilty of race discrimination. It is not clear what claim Ms Carneiro has brought personally against Mourinho, although as the FA has investigated (and cleared) him for making racist remarks, it may also be a claim for race discrimination.
Discrimination can take various forms and is not always obvious. However, there is no doubt that if an employee makes derogatory remarks about a colleague’s race, gender, age, disability, sexual orientation, marital status, maternity or gender reassignment (known as the “protected characteristics”), it is likely to amount to unlawful discrimination. In that event, the employee who made the comments may find himself / herself personally liable for compensation. A reminder of this to wayward employees can have a sobering effect.
