Gutierrez and the risk of a red card for employers over disability discrimination


5 mins

Posted on 15 Oct 2015

The footballer Jonas Gutierrez is reportedly suing his former club, Newcastle United, for disability discrimination.  

Gutierrez was contracted to Newcastle United from 2008.  He was diagnosed with testicular cancer in 2014.  In summer 2015 the club informed him that it had decided not to offer him a new contract when his existing contract expired.  

It has been reported that he now is claiming £5m from Newcastle United to compensate for disability discrimination in both the way he was treated by the club during his illness and arising from the failure to offer him a new contract.  

One possible view:

Whilst the facts are not fully known, one argument that an employee might raise in similar circumstances is that Newcastle released him because they did not want to pay his wages in circumstances where he might suffer a relapse and have another long period of absence from the playing squad.

Legal position: disability discrimination 

Employees like Gutierrez are protected from disability discrimination by the Equality Act 2010 (the “Act” ).  

Amongst other things, the EA provides that it is discriminatory for an employer to:

a. treat a disabled employee less favourably than others directly because of their disability (known as direct discrimination); and/or

b. treat a disabled employee unfavourably because of something arising in consequence of their disability (known as discrimination arising from disability).  

Additionally, the Act places a positive obligation upon employers to make reasonable adjustments to the workplace and to other employment arrangements to remove substantial disadvantages or obstacles which hinder the employee’s ability to perform their job as a result of their disability.

Under the Act, people with cancer are deemed to be disabled and protected from disability discrimination from the point at which the cancer is diagnosed. The club therefore had a legal duty to treat Gutierrez and to make decisions concerning his employment in a non-discriminatory manner from the time at which his cancer was identified.

Is there a disability discrimination case to answer?

Judging from afar, Gutierrez may have difficulty in establishing that his contract was not renewed as a result of direct disability discrimination. This is because another player, Ryan Taylor, who did not have a disability, was also informed that his contract would not be renewed at the same time that Gutierrez was released. Newcastle United might argue that their treatment of Taylor demonstrates that Gutierrez was not singled out or treated less favourably than others due to his disability.

This does not mean that Gutierrez’s claim will fail; he could still succeed in claims for discrimination arising from disability and for a failure to make reasonable adjustments. The legal test for the discrimination arising from disability claim has a lower hurdle for Gutierrez to get over as it does not require him to compare his treatment to Taylor or that of anyone else.

Gutierrez would however still need to persuade the Employment Tribunal that he was treated unfavourably because of something arising in consequence of his disability. Examples of this might be if Newcastle’s decision not to renew the contract was influenced by Gutierrez’s need to have regular hospital appointments or different training routines to other players, all of which could be consequences of his cancer. He might also argue that it was unfavourable treatment if Newcastle had not reintegrated him into the senior playing squad rather than the reserves on his return from treatment.

The same examples might apply to a claim for failure to make reasonable adjustments, for instance if the club had not been willing to make reasonable adjustments to his training routines or to immediately return him to the senior playing squad on his return from chemotherapy, keeping him in the reserves instead.

Legal position: non-renewal of a fixed-term contract 

Gutierrez, like most footballers, was employed on a fixed-term contract. When a fixed-term employee’s contract is allowed to expire and is not renewed or extended by the employer, it is treated as a dismissal for legal purposes. As a result, the employee will potentially have claims arising from the dismissal unless the employer can demonstrate a fair and non-discriminatory reason to justify its decision not to renew the contract.

In this case Gutierrez might argue that that he has two claims arising out of the club’s decision not to renew his contract, being unfair dismissal and disability discrimination. Again, to defend the claims the club will need to demonstrate that its decision was not tainted by Gutierrez’s ill-health.

If Gutierrez succeeds in his claims he could recover compensation for lost earnings and for injury to feelings. What’s more, in discrimination claims there is no cap on the amount of compensation that an Employment Tribunal can award. For a high-earning footballer, the £5m allegedly being claimed might not be out of the ball-park.

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