An employment tribunal has found that Newcastle United (Newcastle) discriminated against former player, Jonas Gutierrez, on the grounds of disability and now the club faces paying considerable compensation of up to £2 million.
Under the Equality Act 2010 (the Act), a person is protected against disability discrimination if they can show that they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. However, certain conditions are automatically regarded as disabilities under the Act including cancer (as in this case), HIV and multiple sclerosis.
Under the Act, disability discrimination includes:
Direct discrimination - this occurs when an employer treats an employee less favourably because of their disability. Employers cannot justify any instances of direct discrimination.
Discrimination arising from a disability - this occurs when an employer treats an employee unfavourably because of something arising in consequence of their disability, e.g. disability related absence, without objective justification.
Failure to make reasonable adjustments - an employer has a duty to take such steps as it is reasonable to take to avoid any substantial disadvantage suffered by a disabled employee in comparison to those who are not disabled. Failure to make such reasonable adjustments is disability discrimination.
The employment tribunal case
Gutierrez was successful in two of the four claims he brought against Newcastle including direct discrimination and failure to make reasonable adjustments.
Gutierrez joined Newcastle in 2008 and was a prominent first-team player, regularly being selected for matches. He was first diagnosed with testicular cancer in October 2013 and as a result took time out from the club to have surgery in his home country of Argentina in November 2013. In the summer of 2014 Gutierrez's cancer returned but, after undergoing chemotherapy, he made a full recovery and returned to the club in November 2014.
In the summer of 2015, Newcastle informed Gutierrez that they would not be renewing his contract, and, because he had not made 80 appearances for the club, the automatic one-year extension clause of his contract would not kick in.
Gutierrez claimed Newcastle did not play him on purpose with the sole aim of ensuring that he could not fulfil the 80 game quota and extend his contract. In effect, he argued he had been "frozen out" of the first team squad because he had had cancer. Gutierrez told the Tribunal "I think they feared that my illness would mean that I could no longer play at the highest level and they considered me to be a liability rather than an asset to the club."
The Tribunal preferred Gutierrez's evidence to Newcastle's and found in his favour.
This case demonstrates that all employers, no matter what their status, have the same duties under the Act and that even high paid employees, such as Premier League footballers, are protected under discrimination law.
While many people may be surprised that a sportsperson who had successfully undergone medical treatment could be regarded as disabled, Gutierrez's claim against Newcastle shows just how broad the legal definition of disability can be.
The duty to make reasonable adjustments is potentially an onerous one for employers and is a rare example of 'positive discrimination' in that it requires organisations to go the extra mile to support disabled employees in the workplace. However, this is what the law requires and employers who fail to observe it face paying potentially unlimited compensation.
We are still waiting to hear exactly what Gutierrez is to be awarded as compensation, but as this decision shows, the cost of getting it wrong is potentially devastating for an employer, both in a financial and reputational sense.