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Not a good week for football…

This week, two football clubs have been found to have discriminated against their employees.

Gutierrez 1 – Newcastle 0

Jonas Gutierrez, who signed for Newcastle United Football Club in 2008, brought an employment claim against his former club on the grounds of disability discrimination.

Gutierrez was diagnosed with testicular cancer in 2013 and claimed that he was subjected to discrimination by the Club following his diagnosis.

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

Under the EqA employers must not:

  • Discriminate directly by treating an employee less favourably than others because of a disability; or
  • Discriminate by treating an employee unfavourably because of something arising in consequence of a disability without objective justification.

Gutierrez claimed that there was a change in attitude from the Club in that the club viewed him as a “liability rather than an asset after his operation” and therefore treated him unfavourably compared to his team mates. Gutierrez also alleged that on his return to the Club following his diagnosis, despite being “match ready”, he was not included in the starting line-up and this ultimately resulted in his contract expiring rather than automatically renewing where he played a set number of games.

Decision

The Employment Tribunal found that the Club deliberately managed Gutierrez’s selection to prevent him triggering the option of extension to his contract. The Tribunal found that this was because the Club no longer wanted him because of the cancer and such that he had been discrimated against on the grounds of his disability. It seems that Newcastle’s disastrous season just got even worse!

The decision demonstrates the level of caution that employers should exercise when making any business or employment-related decisions in connection with an employee’s disability. The potential costs of mismanaging the situation could be significant with the potential for unlimited compensation in Tribunal.

 

Ward 1 – Leeds United 0

Ms Ward alleged that she was dismissed from her role as Education and Welfare Officer at Leeds United’s academy because of her relationship with Neil Redfearn, the former Leeds United Manager.

Ms Ward and Mr Redfearn were dismissed within minutes of each other, allegedly at the instruction of Mr Cellino, the Club’s owner, who viewed Ms Ward and Mr Redfearn “as a pair”. Mr Cellino had also allegedly previously stated that “there was no place for women in football”.

Ms Ward who had an unblemished employment record with the Club, had arranged to take leave to commentate on the Women’s Wold Cup in Canada. The Club was fully aware of this arrangement and permission had been sought by Ms Ward beforehand. However, on her return, she was told that she had committed an act of gross misconduct for taking in excess of her annual leave entitlement and was dismissed.

Ms Ward brought claims in the Employment Tribunal for sex discrimination and unfair dismissal.

Decision

Taking into consideration witness evidence, the Tribunal found that on the balance of probabilities, Mr Cellino had instructed the Club to sack Ms Ward and this decision to dismiss had been taken with a sexist view. Employers should ensure they follow their own policies and procedures when considering any disciplinary action against an employee but also to ensure they are applied fairly and without bias to minimise the risk of costly unfair dismissal and/or discrimination claims.

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