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          Discrimination by the magpies - It’s not black and white

          Jonas Gutierrez, who signed for Newcastle United Football Club (for the uninitiated, also known as the “magpies”) in July 2008, has brought an employment claim against his former club in the region of £2 million on the grounds of disability discrimination.

          Date: 07/04/2016

          Jonas Gutierrez, who signed for Newcastle United Football Club (for the uninitiated, also known as the “magpies”) in July 2008, has brought an employment claim against his former club in the region of £2 million on the grounds of disability discrimination.

          Gutierrez was diagnosed with testicular cancer in 2013 and required an operation to remove his left testicle; he is suing Newcastle United for the way the club treated him after his diagnosis. Gutierrez also alleges that Newcastle’s management increasingly influenced first team selection, to ensure that a contractual clause entitling Gutierrez to an extra season was not triggered.

          The Tribunal has now retired to consider judgment which is not expected for around a month. What chance does Gutierrez have of succeeding with his claim and what will be the impact of this case?

          Legal position

          Under the Equality Act 2010 (the “Act”) cancer is a deemed disability from the point of diagnosis.

          Under the Act employers must not:

          1. Discriminate directly by treating an employee less favourably than others because of a disability; or

          2. Discriminate by treating an employee unfavourably because of something arising in consequence of a disability without objective justification.

          Unfavourable treatment

          Gutierrez claims that the club increasingly saw him as a “liability rather than an asset after his operation” and therefore treated him unfavourably compared to his team mates. He claims that Alan Pardew, former Newcastle United manager, told him that he was surplus to requirements within a couple of weeks of his return and a mere six weeks after his surgery. Gutierrez had been a fixture in the Newcastle starting eleven the previous season, featuring in 34 out of 38 Premier League matches. Gutierrez also claims that he was forced to train with the under 21 squad on numerous occasions rather than with his team mates, which he described as “demoralising and humiliating”. His contention is that this change in attitude arose as a direct result of his cancer diagnosis.

          Newcastle deny that the treatment of Gutierrez had anything to do with his cancer diagnosis and put his omission from the starting eleven down to a change in playing style. It was also submitted in evidence that the club had recently brought in a number of new and better players and it was for these reasons that  Gutierrez was no longer required rather than as a result of his disability.

          Non-renewal of contract

          Gutierrez is also claiming that he was not offered a new contract as a result of his disability. His contract contained a clause stating that if he started 80 games between 2011 and 2015, he would automatically be provided with an additional one year contract extension. Gutierrez has claimed that Newcastle’s hierarchy forced Pardew and John Carver (interim manager from January 2015) not to place Gutierrez in the starting eleven, leaving him with only 78 starts over the four years, just two starts short of triggering the automatic extension. This, Gutierrez argues, was due to their desire not to continue to pay his wages should he suffer a relapse and be forced to take another lengthy absence.

          In his witness evidence, Carver stated that he has never been pressured to drop a player, and that the board played no role in his decision regarding first team selection. Carver also stated that, due to the club fighting relegation at the time, he was focused on selecting his best team which sometimes meant leaving players such as Gutierrez out. A number of players, deemed surplus to requirements, were released at the same time as Gutierrez. Notably this included Ryan Taylor, who did not have a disability, but had missed a significant number of games due to injury. Newcastle submitted this as evidence that they had not released Gutierrez due to his disability.

          In closing submissions Newcastle’s counsel cited that it is a “unique set of circumstances” and the club needed “people who are good and fit and regularly available”. He submitted that it was reasonable not to renew Gutierrez’s contract against the backdrop of the club fighting relegation and the uncertainty associated with both the team and its finances.

          Outcome and impact

          Due to the nature of football, first team players are regularly replaced for a variety of reasons, and Gutierrez may therefore struggle to prove that his omission from the starting eleven was disability discrimination. Whilst the “starting eleven” principle is unique to football, this case is interesting for employers to follow as it emphasises the fact that any discretionary decisions about, for instance, promotion, pay reviews and bonuses could be scrutinised for underlying discriminatory treatment.

          It will be interesting to see how the Tribunal applies the appropriate comparator question and whether Newcastle’s actions are found to be indirectly discriminatory because Gutierrez’s absence, caused by his disability, was part of the reason for non-selection and/or the non-renewal of the contract.

          In light of the recent decision in the Griffiths case Gutierrez could have argued that it would have been a reasonable adjustment to change the trigger point for the guaranteed one year extension to his contract in view of his illness.

          We will report on the outcome and impact of the decision once it is issued.

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