Following our recent blog on Jonas Gutierrez’s disability discrimination claim against Newcastle United Football Club, a decision has now been handed down by the Birmingham Employment Tribunal and it was a good result for the Argentinian.
The Tribunal held that Gutierrez was discriminated against following his cancer diagnosis and subsequent return to fitness. The rationale given by the Tribunal was that Gutierrez was considered a key part of the club’s plans until his cancer was diagnosed and that he “had maintained his place in the starting line-up without difficulty for five years” before the diagnosis. They also ruled that it was due to Gutierrez’s cancer that the decision was made to tell the player he was surplus to requirements, just two weeks after he returned from treatment.
The Tribunal also found that the club had made it impossible for Gutierrez to trigger an appearance-based contract extension, notably not considering him for selection until it was impossible for him to achieve the required number of starts. Gutierrez’s absence meant that he was only available to play in 121 games, instead of 152 which limited his chances of playing in enough games to trigger the extension. The Tribunal held that the club should have made reasonable adjustments in respect of this, and failure to do so amounted to discrimination:
“It was in essence more difficult for the claimant to achieve the required number of games because in the periods of time that he was not absent for treatment or rehabilitation he had to be more frequently selected as a proportion of the total number of games available than his non disabled counterparts. We conclude that this was a substantial (more than minor or trivial) disadvantage.”
However, Gutierrez wasn’t entirely successful. The claim that his loan move to Norwich City was unfavourable treatment was rejected, on the grounds that the move was consensual. The Tribunal also dismissed the player’s claim that being made to train with the under-21 squad was harassment, ruling that many players, such as team-mates Davide Santon and Gabriel Obertan, were also required to train with the under-21 squad to gain match fitness following injury.
What does this mean for employers?
As discussed in our previous blog, this case emphasises the fact that any discretionary decisions about promotion, pay reviews, bonuses etc. could be scrutinised for underlying discriminatory treatment and employers should approach these areas with caution. In particular, employers may need to consider extending the window to attain employment milestones should an employee’s absence, as the result of their disability, limit their opportunity to achieve the required thresholds.
A further remedy hearing will be held in due course, in which the issue of compensation will be addressed. Newcastle have stated that they are “dismayed” by the judgment and are considering further options with their legal team.
In other football club news, June will see the London South Employment Tribunal hear former Chelsea FC doctor Eva Carneiro’s constructive dismissal and sex discrimination claims against Chelsea. The doctor is also pursuing former Chelsea boss Jose Mourinho separately, following comments made to the media describing then first team doctor Carneiro and a male physio as “naïve” after they attended to Eden Hazard during a match, resulting in him having to leave the field of play when Chelsea were already down to 10 men.
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Blog posted 25 April 2016