Former Newcastle United player, Jonas Gutierrez, has been successful in his disability discrimination claim against his old football club Newcastle United.
The case shows the importance of employers considering what amounts to a disability and the duties they have to make reasonable adjustments to combat any substantial disadvantage faced by employees with a disability.
Details of the case
Gutierrez was diagnosed with testicular cancer in 2013. He brought a claim to the Employment Tribunal in Birmingham claiming that the football club had failed to make “reasonable adjustments” to accommodate his condition (as required by the Equality Act 2010) and separately that they discriminated against him, by restricting his match appearances, in order to avoid triggering a mandatory contract extension.
Gutierrez’ contract provided for an automatic lucrative one-year extension should the player reach a certain number of games for the club. The clause in his contract stipulated that if he started 80 games, he would earn an automatic one-year extension. He would go on to make 78 starts for the club over the course of his four-year deal.
The player alleged he was ‘frozen out’ of the first team because of his diagnosis with testicular cancer in 2013, so that Newcastle would avoid having to offer him a one-year extension to his contract. Before diagnosis, Gutierrez had been a regular first-team player but just over two weeks after his return to the club following diagnosis and treatment in November 2013, he was told he no longer featured in the club’s plans. The tribunal found that Newcastle United decided to deliberately manipulate his number of appearances, so as to prevent him triggering the option clause to extend his contract.
It is understood that in their defence, Newcastle contended that the decision not to play Gutierrez was based on his footballing ability and was unrelated to his disability. Former managers Alan Pardew and John Carver gave evidence that the decision not to play Gutierrez was made by the managers and not a commercial decision at board level to avoid extending the player’s contract. Pardew gave evidence that before Gutierrez’ cancer diagnosis was known, he had informed the player that he would not play much first team football in the coming season.
The decision – Newcastle lose
The evidence led by Newcastle was not accepted by the tribunal which concluded that Newcastle had committed direct disability discrimination. The tribunal upheld the claim of less favourable treatment, and also one of failure of Newcastle United to make reasonable adjustments to his treatment in light of his illness. The tribunal determined that the decision made by Newcastle United to drop the player was because of the claimant’s cancer.
Further claims of unfavourable treatment and another of harassment related to disability were dismissed.
Tribunal awards for compensation in successful disability discrimination cases are uncapped and can therefore be particularly costly for an employer. A further hearing will decide the amount of compensation Gutierrez will receive - it is reported that he is seeking in the region of £2 million.
Implications for employers
This case highlights the importance of considering what amounts to a disability. Employers must remember that cancer is a disability under the Equality Act 2010. Organisations have a duty to make reasonable adjustments to combat any substantial disadvantage faced by employees with a disability. Employers should take steps to investigate the nature and affects of the employee’s cancer and make appropriate adjustments. This can include reducing an employee’s workload, altering working hours or allowing a period of leave for treatment.