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Jonas Gutierrez: lessons for employers

The outcome of the footballer's disability discrimination claim against Newcastle United holds some valuable lessons

Jonas Gutierrez has won his disability discrimination claim against Newcastle United in a salutary lesson for employers dealing with disabled employees.

Gutierrez was diagnosed with testicular cancer in 2013. Under the Equality Act 2010 employees with cancer are deemed to be disabled from the point of diagnosis. Following treatment, Gutierrez was rarely selected for matches, not playing enough to trigger an automatic extension clause in his contract. Gutierrez said that two months after he had surgery Newcastle told him that he was free to leave as he would no longer feature in their plans. The club decided not to offer him a new deal when his contract expired in 2015. He claimed direct disability discrimination and that Newcastle had breached its duty to make reasonable adjustments.

Newcastle denied this, claiming that its decision was based on Gutierrez’s footballing ability and was unrelated to his disability. Former manager Alan Pardew gave evidence that before Gutierrez’s cancer diagnosis was known he had informed him that he would not play much first team football in the forthcoming season.

However, the tribunal did not accept that evidence and concluded that Newcastle had committed direct disability discrimination. The club no longer wanted Gutierrez because of his cancer diagnosis and had deliberately managed his selection to prevent the contract extension being triggered. It had also failed to make reasonable adjustments.

The case provides valuable lessons on managing employees with disabilities:

  • Keep a paper trail
  • Keep in touch and discuss how to help
  • Non-renewal of a fixed-term contract is a dismissal

The case turned on witness evidence. There was no paper trail to explain why Gutierrez had not featured regularly in the team since his recovery and why he had not been offered a new contract. The Employment Tribunal had to make a decision based on which side’s witnesses were most credible and it preferred Gutierrez’s evidence.

Had the club recorded its decision-making process contemporaneously, including keeping notes of discussions with Gutierrez, it would have had objective documentary evidence to support its defence and to counter Gutierrez’s allegations.

The Equality 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 a disability.

Employers should ensure that they keep up-to-date with an employee’s recovery from disability-related ill-health and, crucially, obtain medical advice on what adjustments might be reasonable to help them back to work. Gutierrez claimed that the Newcastle manager and directors did not contact him during his treatment, and it seems that the tribunal was persuaded that this was indicative of the club’s failure to consider reasonable adjustments and its intention not to retain his services.

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. The employee will potentially have claims, including for unfair dismissal, unless the employer can demonstrate a fair and non-discriminatory reason to justify its decision not to renew the contract.

In this case the lack of a paper trail and the inconsistent evidence from Newcastle’s witnesses meant that the club was unable to show that its decision not to renew Gutierrez’s contract was not tainted by considerations relating to his disability.

The tribunal will now assess the compensation claimed by Gutierrez, reported to be around £2 million.

Dan Begbie-Clench is partner at workplace lawyers Doyle Clayton