Andrew Willshire | 19th April 2016

Footballer wins disability discrimination claim


Andrew Willshire | 19th April 2016

Footballer wins disability discrimination claim

Ex-Newcastle United midfielder Jonas Gutierrez has won his claim for disability discrimination in the employment tribunal.

Gutierrez, 32 years of age, was diagnosed with testicular cancer in October 2013. He had been a regular and important first team player for the Tyneside club, and their miserable 2015/16 season has now become even worse. The player claimed that he was “frozen out” by the club following his diagnosis and that the club saw him as a liability following his return from treatment. The employment tribunal discovered that Newcastle United prevented Gutierrez from playing to avoid having to give him a contract-extension.

The tribunal found that the player had been a mainstay in the first team line-up for the years preceding his illness. The ruling stated that “just over two weeks after the claimant returned to the club in November 2013 following his diagnosis and treatment, and at a point when he was match fit and returning to action, he was told he no longer featured in the club’s future plans. We conclude that the decision to drop the claimant was because of the claimant’s cancer”. The tribunal surmised that “the reason why the respondent managed the claimant’s selection was because they no longer wanted him at the club because of his cancer”.

The tribunal also ruled that Gutierrez was not selected following his return from injury until he could no longer achieve the 80 Premier League starts required over the duration of his four-year contract to trigger the extension. The tribunal accepted that the club had failed to make reasonable adjustments for the player.

Claims for harassment and unfavourable treatment were, however, dismissed. A remedy hearing will be listed in due course to consider compensation. This could be a very costly case with Jonas Gutierrez allegedly asking for £2 Million.

Disability Discrimination – The Law

Disability is a protected characteristic under the Equality Act 2010 and is defined as a physical or mental impairment, which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities. To be long-term the impairment must:

  • have lasted at least 12 months;
  • be likely to last for 12 months or more.

Employers also need to be cautious where a person has a condition that is likely to recur.

Certain conditions are deemed to be disabilities from day 1 including cancer (as was the case here).

There are many forms that disability discrimination can take. A few examples are:

  1. Direct disability discrimination

This occurs when an employer treats an employee less favourably than others because of his/her disability. This was the case for Jonas Gutierrez and Newcastle United. Direct discrimination cannot be justified by an employer.

  1. Indirect disability discrimination

Employers can also indirectly discriminate against disabled employees. This occurs when they apply a provision, criteria or practice (PCP) which puts the disabled employee at a disadvantage and the employer cannot justify the PCP. Employers can only justify making the PCP if they show it is a proportionate means of achieving a legitimate aim.

  1. Failure to make reasonable adjustments

The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to working practices or even premises to help disabled employees. Failure to do so is a form of discrimination. It is important to note that an employer is only obliged to consider reasonable adjustments if it knows or ought reasonably to know that the individual is disabled or at a substantial disadvantage because of their disability.

Employers beware!

Disability discrimination can be a minefield for employers and careful handling is often required. We deal with many cases involving disabled employees and the working relationship is often positive and successful. Many situations can be dealt with successfully.   However, as illustrated by this case, the cost of getting it wrong can be substantial.

If you as an employer are in any doubt as to whether one of your employees might be disabled then you may need to obtain medical and/or legal advice (the test for disability is not one solely for a doctor). Once you are aware that an employee is disabled, how you accommodate them and the adjustments you make will be crucial in avoiding any disability discrimination complaint.

This case represents a reminder for employers that they are to tread carefully when it comes to disabled employees and continually evaluate how they can support them back into the workplace.

Seeking specialist legal advice at an early stage is recommended for employers to act appropriately and in accordance with the law. A specialist employment solicitor will be able to guide you through difficult issues regarding disabilities and discrimination and this might be the difference between treating employees lawfully and respectfully and having a claim brought against you in the employment tribunal.

If you have any questions in relation to the above article or disability discrimination, please do contact me.