Red Card For Newcastle United In Gutiérrez Case

An employment tribunal has found that former Newcastle United footballer Jonás Gutiérrez was discriminated against by the club following his cancer diagnosis. Gutiérrez had regularly played for the club since 2008, but after informing his employer that he had been diagnosed with testicular cancer, found that he no longer featured in the club’s long term plans. The tribunal also found that Newcastle’s failure to select Gutiérrez meant that he could not meet the threshold required to renew his contract automatically.

For the purposes of the Equality Act, cancer is a disability, and therefore employers are not only under a duty to make reasonable adjustments, but also prohibited from discriminating against an employee because of the cancer. Gutiérrez’s disclosure of his diagnosis to the club triggered these obligations for Newcastle United.

An employer’s failure to make reasonable adjustments can manifest itself in many ways, but in essence anything putting a disabled person at a particular disadvantage could constitute such a failure. In this instance, following Gutiérrez’s absence due to his illness, he was unable to play the number of games required of him to triggerthe extension of his contract. It is easy to see how the footballer’s absence put him at a substantial disadvantage in this respect, and yet Newcastle United did not increase the frequency of his selections, thereby preventing him from ever reaching that number.

In many discrimination cases, evidence would rest on people’s behaviours, implied comments or changing workloads. In this case, however, it was found that once Gutiérrez returned to the club after his recovery, he was clearly told that he was no longer part of Newcastle United’s long term plans. The tribunal unsurprisingly found this was discrimination based on the footballer’s illness.

It is interesting to see a disability discrimination case being brought against a Premier League club. With footballers often seen aslucrative investments and talked about in terms of transfer fees, it is all too easy to forget that most players are still employees with the benefit of employment rights.

Marguerite Perin is a paralegal at leading senior executive employment law firm BDBF LLP