This is the second article in our Employment Law in Sport series to be published over the course of 2019.
Discrimination cases against sporting bodies are on the rise in Ireland and the UK, following a rising trend in discrimination cases being brought by employees in all sectors. We discuss some of the most high-profile recent cases in Ireland and the UK and offer sporting body employers 'top-tips' to ensure that their employees are not discriminated against and to protect organisations' reputation.
A recent and well-publicised gender discrimination claim in the UK was taken by Eva Carneiro, the former Chelsea Football Club doctor, against Jose Mourinho, then manager of the club. Carneiro gave evidence that Mourinho called her discriminatory names during an incident in a match when Carneiro ran to assist an injured player on the pitch. Mourinho was aggrieved that Chelsea was temporarily reduced to nine men while Carneiro was treating the player and allegedly called her “impulsive and naive” following the incident. Carneiro left the club shortly after the incident. Although this case settled in advance of a full hearing, the club suffered reputational damage as a result.
In 2017, the Workplace Relations Commission (WRC) in Ireland upheld a complaint made by Dave Miley against Tennis Ireland for discrimination in the recruitment selection process for the position of chief executive on the ground of age and made an award against Tennis Ireland of €6,500. Again, this case was widely reported and is illustrative of the reputational damage that can occur to sporting bodies.
In 2016, former Premier League footballer Jonás Gutierrez won a discrimination claim against his former club Newcastle United on the ground of disability. Gutierrez was a regular starter for Newcastle United for a number of years until he was diagnosed with testicular cancer in 2013. His contract provided that he was entitled to an automatic one-year extension to his contract if he started 80 Premier League games during the term of his contract. He claimed that the club board influenced team selection to prevent him reaching his contractual trigger point preventing him from securing an extension to his employment contract. Gutierrez's claims for direct discrimination and failure of the employer to make reasonable adjustments were upheld. Not only did the club suffer reputational damage as a result this claim, it was reported that a further hearing is to be heard on the level of compensation due.
In light of the increase in discrimination claims in recent years and the widespread media coverage they attract, sporting bodies need to be cognisant of their duties towards their athletes and employees, both from a media perspective and an employment perspective. To avoid negative media coverage and claims from their employees and to foster an equal-working environment, they must ensure that they have appropriate processes, policies and procedures in place to eliminate discrimination.
Overview of Discrimination Law in Ireland
The Irish Employment Equality Acts 1998 to 2015 (EEA) provide protection to employees in Ireland from discrimination on nine grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller Community. There is some discussion to seek to extend these nine grounds to include a socio-economic ground and a mental health ground (for further information see here). The employer's intent is largely irrelevant, and it is the effect on the employee that matters.
An employee who feels they have been discriminated against can bring a complaint to the WRC and can be awarded compensation of up to 104 weeks' remuneration for the act(s) of discrimination.
Employees are entitled to a workplace that is free from discrimination and the onus is on employers under the EEA to ensure that this is the case. Sporting bodies therefore need to ensure that they are proactive and ensure that a culture that does not tolerate discrimination is cultivated throughout its organisation and well-communicated to its employees.
A sporting body may avail of a defence where it can show that it took all reasonable steps to prevent the discriminatory act occurring. We recommend ensuring that sporting bodies, at the minimum:
- put in place appropriate policies and procedures and keep these updated in line with changing legislative requirements;
- communicate these policies with their staff in a transparent manner and ensure that they are aware of all policies and procedures;
- adopt a fair, transparent and non-discriminatory recruitment process from the outset;
- implement staff training (at all levels) to prevent and reduce the likelihood of discrimination occurring;
- take notes at interview / promotion meetings;
- develop a crisis plan and / or a media response plan to train staff on how to deal with media and crises;
- proactively communicate and engage stakeholders; and
- ensure a process is in place to effectively address any discrimination complaints in a timely, fair and confidential manner.
These measures will assist sporting bodies in minimising bad publicity and discrimination claims from its employees.
Click here to see the first in our series of articles on Employment Law in Sport.