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What businesses can learn from Jonas Gutierrez

Elite footballers rarely bring claims in the employment tribunal. Whether or not there is an appeal, Jonas Gutierrez’s successful claim against Newcastle United should prompt employers to re-evaluate their approach to disability in the workplace. 

Businesses can learn from two particular lessons from the facts of this case, which are outlined in this article by Richard Santy, Partner at Mills & Reeve, who acted for Jonas Gutierrez in these proceedings. Jonas Gutierrez first signed for Newcastle in 2008 and appeared regularly in their first team. In 2011 he signed a new four-year contract which provided for an automatic one-year extension if he started eighty Premier League games. However, in Autumn 2013, he was diagnosed with testicular cancer and required an operation. The tribunal found that within a couple of weeks of his return to the Club after his operation, he was told that he was no longer a part of their long term plans and that he was free to search for a new club. He was able to return to training one month after his initial diagnosis, but a recurrence of the cancer and further treatment meant that he missed about three months of the following season. The tribunal found however that there was no long-term effect on his form and fitness. When his contract ended in June 2015, he had started in 78 games, two short of the number required to trigger the extension clause. The tribunal concluded that his selection for the first team had been manipulated to prevent the automatic extension clause being triggered. 

The tribunal’s decision
The tribunal upheld two of Jonas Gutierrez’s four claims under the Equality Act 2010. It found that he had been subject to direct disability discrimination because of the way the club responded to his cancer diagnosis and the way it manipulated his league appearances to prevent his contract being extended. It also concluded that Newcastle had failed in its duty to make reasonable adjustments. The Club should have reduced the number of appearances required to trigger the contract extension, to reflect the period when he was unable to play because of his cancer treatment. 

Lesson 1: Recognise that employer’s may need to treat cancer diagnosis differently to some other disabilities
Cancer is an unusual disability. It is one of a handful of progressive conditions, which are deemed to result in disability from the point of diagnosis. With other medical conditions potential claimants need to show that they are suffering from an impairment, which has a “substantial and long-term adverse effect” on their ability to carry out day-to day activities. Originally cancer was treated in the same way as other illnesses, but the law was changed in 2005 because there was evidence that cancer patients were often badly treated by employers, even at the point of initial diagnosis. Ten years on cancer can still carry a stigma, or at least a perception that it will inevitably lead to rapid physical decline. In the case of Gutierrez, once the tribunal had made a decision that the mere diagnosis of cancer triggered the adverse treatment, the claim for direct discrimination was bound to succeed. 

In contrast, most disability discrimination cases are actually about the way employers respond to the symptoms of an illness – for example poor attendance or reduced physical capability. In such a case employers are not in breach of the law if the adverse treatment is “a proportionate means of achieving a legitimate aim” – in other words, taking reasonable steps to keep the business running and get the work done. For example, a job specification may state that applicants for a telephone customer service role have to have good communication and verbal skills. For an applicant who has a speech impediment, this requirement could be considered indirectly discriminatory (because of a disability) as, whilst it applies to all applicants equally, it may disadvantage an applicant with a speech impediment because they may not be able to communicate as effectively. 

If, however, an employer can show that the requirement is a “proportionate means of achieving a legitimate aim”, which in this example may be the provision of effective customer service, they could establish a defence to a requirement which may otherwise be discriminatory, although care will need to be taken to show the requirement is “proportionate”. This however is a complicated area of law with potentially high compensation payments and therefore in order to ensure employers are not operating on the wrong side of the law, if in doubt, seek legal advice.  

Lesson 2: Think more widely about reasonable adjustments
The second lesson of this case is the width of the duty to make reasonable adjustments. This is, in fact, the strongest element of protection for disabled people under the Equality Act because it puts the burden on the employer to take “such steps as it is reasonable to have to take to avoid that disadvantage” i.e. to take such steps that would put a disabled person on a level playing field with a non-disabled person.  

In recent years most reasonable adjustment claims have been disputes about allowing flexible and part-time working or allowing longer periods of sick leave (though not normally extra sick pay). This case goes significantly further, and suggests that employers should also be looking at varying a key term (in this example, the number of days that would trigger a contract extension) of the underling contract of employment. Other claims have surfaced recently which point to a similar direction of travel. For example, there was the recent tribunal decision involving a dyslexic worker at Starbucks who was disciplined for filling in some paperwork incorrectly. In that case, the tribunal said that the employers had failed to consider what adjustments could have been made to her duties to reflect the disadvantage she suffered because of dyslexia. That might have involved getting another worker to complete or check the necessary paperwork. The amount of compensation Jonas Gutierrez will receive is yet to be determined, but it is likely to be a sizable sum. Employers should beware that the cost of failing to make reasonable adjustments and making assumptions when an employee suffers from cancer can be significant, and review their process with these two key lessons in mind.

www.mills-reeve.com

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