Louise McAloon, Partner, considers the recent case of a football star, Jonas Gutierrez, who has won a disability discrimination claim against his former football club Newcastle
Gutierrez, now playing for Spanish side Deportivo La Coruna, spent seven seasons with Newcastle after joining club in 2008 and was diagnosed with testicular cancer in October 2013. He received a rapturous reception when he returned to the pitch in March 2015 after treatment and surgery to remove a tumour from his left testicle. But despite his popularity with fans, the tribunal ruled that “Just over two weeks after the claimant returned to the club in November 2013 following his diagnosis and treatment and at a point when he was match fit and returning to action, he was told he no longer featured in the clubs plans”.
Gutierrez had made nearly 200 appearances for the club, who are 2nd from bottom in the league and in serious danger of relegation, before leaving last year to join Spanish team.
He alleged he had been frozen out of first team because he had been diagnosed with testicular cancer in 2013 and Newcastle rejected this claim indicating he did not feature in successive managers’ plans for the squad. In his statement to the hearing Gutierrez said was called to then manager Alan Pardew’s office in early December 2013 – when he felt he was returning to full fitness, to be told that he did not feature in Newcastle’s future plans and was free to agree terms with another club.
Gutierrez subsequently brought an Employment Tribunal Claim for Disability Discrimination claiming management ensured he failed to make enough appearances on pitch to trigger a lucrative one year contract extension worth up to £2 Million.
The Tribunal held that the Club “made a very rapid decision” after his return following treatment at the end of 2013 and concluded “… that the reason why the respondent managed the claimant’s selection was because they no longer wanted him at the club because of his cancer” and “… the decision to drop the claimant was because of the claimant’s cancer”. Panel found “a continuing course of conduct” by Newcastle to “remove” the midfielder from the club however dismissed claims of unfavourable treatment and harassment related to disability.
A further claim that the club failed to make reasonable adjustments for Gutierrez succeeded.
A remedy hearing is now due to be scheduled to determine compensation payable.
Jonas Gutierrez welcomed the decision of the tribunal to find in his favour of his disability and thanked Newcastle fans for their support throughout the case.
Carol Couse, Gutierrez's lawyer, said: "Having battled cancer on two occasions and subsequently suffered unfair treatment by the club as a result of this, Jonas is pleased that the employment tribunal has today found in his favour and held that he was indeed discriminated against by Newcastle United due to his cancer diagnosis and treatment” and further added "This case demonstrates that football is not above the reach of employment law and clubs should be mindful of their duties to treat their playing staff in the same way as they would treat any other employee."
In a statement, Newcastle said: "We recognise that the task facing the tribunal was a difficult one, but we are dismayed by its decision. We will now take time to consider the judgment in full and consult with our legal team to understand the options available to us."