Premier League football club faces potential £2 million payout to former player

22 April, 2016
by: Cripps Pemberton Greenish

man kicking footballFormer Newcastle United footballer Jonas Gutierrez has won his disability discrimination claim against the club.

The employment tribunal’s decision shows that, despite an environment where employees can receive six figure weekly salaries, a Premier League football club owes the same duties to disabled employees (whether it is a player or support staff) as any other employer.

Background

To trigger an automatic one-year contract extension Gutierrez needed to start 80 Premier League games in the period 2011-2015.

Up until his testicular cancer diagnosis in October 2013 this looked likely as the Argentinian had been a mainstay of the Tyneside club’s first team.

However, following his return to match fitness in November 2013 he was rarely included in the starting line-up and as a result he only accumulated 78 starts.

Gutierrez claimed that Alan Pardew, former Newcastle United manager, told him shortly after his surgery that he was surplus to requirements. In contrast, Pardew asserted that prior to the start of the 2013 season he had informed the player that he did not fit into the playing style he wanted to adopt for the club.

Legal

Under the Equality Act 2010 cancer is deemed a disability and employers must not (i) treat an employee less favourably than others because of the disability; or (ii) without objective justification, treat an employee unfavourably because of something arising in consequence of the disability.

Decision

Although his claims of harassment and unfavourable treatment were dismissed, the employment tribunal found that Gutierrez had been less favourably treated due to his cancer and that the club had not made reasonable adjustments due to his disability. The employment tribunal concluded that because of Gutierrez’s disability, Newcastle United did not want him to remain at the club and they managed his selection to prevent the contract extension being triggered.

The amount of compensation awarded to Gutierrez shall be determined at a remedy hearing. However, with compensation being uncapped in cases of discrimination and Gutierrez allegedly seeking £2 million, Newcastle United now face a very sizeable pay out on top of relegation fears.

Conclusion

Every employer should be aware of its duties to its employees and should tread carefully when it comes to disabled employees.

Team selection in elite sport is often subjective and players may or not be selected for a variety of reasons. Therefore, the Gutierrez case highlights that whatever your business, where a potential disability is involved you need to carefully consider the real reason behind any ‘discretionary’ decisions – for example, promotion, pay reviews, bonus payments, renewal of fixed term contracts.

Further, if an employee has a disability that could place the individual at a substantial disadvantage then the employer must consider reasonable adjustments – in this instance, amending the 80 game threshold.