Disability Discrimination – Update

The topic of disability discrimination has once again found itself in the media following the recent reporting of a claim by former Newcastle United player Jonas Gutierrez.

The 32 year old has sued the club for approximately £2 million, on the basis that he had been subjected to detrimental treatment following his diagnosis with testicular cancer in October 2013.

Cancer is deemed to be a disability for the purposes of the Equality Act 2010 and the Act protects not only those who have a disability, but those who have had a disability in the past.

Gutierrez claimed that the club saw him as “a liability” after he returned from treatment. In addition, he alleged that he was not selected for some of the second half of the 2014/2015 season (when the club avoided relegation on the final day of the campaign) so that the club would not trigger an automatic one year contract extension. Gutierrez had the opportunity to participate in only 121 games instead of 152 to earn his extended deal. Therefore he claimed that the club had discriminated against him by failing to make reasonable adjustments.

The Tribunal held that the Gutierrez was indeed discriminated against following his diagnosis, as well as following his return to fitness, in view of the fact that  prior to his absence he had been very much involved in the club’s future plans.

The Tribunal’s ruling explained that, “just over two weeks after the Claimant returned to the club in November 2013 following his diagnosis and treatment, and at a point when he was match fit and returning to action he was told that he no longer featured in the club’s future plans.” This was after Gutierrez had maintained his place in the starting line up without difficulty for 5 years.

In addition, the Tribunal explained that, “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”.

Whilst Gutierrez was successful in his claim that the club had failed to make appropriate reasonable adjustments, claims of unfavourable treatment following a move to Norwich City on loan in January 2014 were rejected, as the Tribunal held that this was consensual. Moreover, a claim of harassment which related to Gutierrez training and playing with the under-21 team were also dismissed as the Tribunal ruled that several over players were also required to do so to gain match fitness after injury.

The case is a useful reminder to employers to ensure that reasonable adjustments (where they are proportionate and appropriate) are made for a returning disabled employee who falls within the protection provided by the Equality Act 2010. The case also highlights the risks that employers face if they fail to follow the correct steps, and in particular the financial and commercial impact that a claim of this nature may hold.

If you would like further advice on how to deal with an employee returning from absence, or the purpose and principles of the Equality Act 2010 more generally, please do not hesitate to get in touch with our Employment team using employment@kitsons-solicitors.co.uk.

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    About the author

    Jayme NicholsonPartner and Head of Employment

    Jayme is a Partner and Head of our Employment team

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