Dark Days for Professional Football

In the space of a few days, two football clubs have been in the news for the wrong reasons, having both lost claims in the Employment Tribunal, which has brought unwanted media attention to the behaviour of Senior Managers.

Newcastle United have lost a disability discrimination claim brought by Jonas Gutierrez and Leeds United lost a sex discrimination and unfair dismissal claim brought by Lucy ward.

Mr Gutierrez was diagnosed with testicular cancer in October 2013, when he was a midfielder for Newcastle United. The Equality Act 2010 specifies cancer as a “deemed disability” from the point of diagnosis, so there was no need to satisfy the criteria which is usually required to show someone is suffering from a disability.

Following his return to the club from treatment in November 2013 he was not selected for some of the games during the second half of season 2014/15, which was the final year of his contract. Mr Gutierrez claimed that he was poorly treated following his diagnosis and that the club chose not to pick him to avoid triggering a clause in his contract which provided for an automatic one year extension to his contract based on the number of games played. The Tribunal accepted this suggestion, and found that he was not considered for selection, following his return to fitness, until he could no longer achieve the required number of games to achieve the contract extension, which was a failure to make reasonable adjustments. The Tribunal concluded that the club took this approach “because they had no longer wanted him at the club because of his cancer”.

It has been reported that Newcastle United are dismayed by the decision of the Birmingham Tribunal. A Remedy Hearing will now be listed to consider the level of the compensation that Mr Gutierrez will be awarded, it is thought that he has claimed in the region of £2m. We would suggest that the £2m figure is what he would have earnt had his contract been extended for a year, had they not discriminated against him because of his cancer – the fact that the dismissal has been found to be discriminatory means that the element of his claim for “loss of earnings” is not capped as it would be in an ordinary unfair dismissal claim. The club say that they are considering their options – if they wish to keep the level of compensation that they agree to pay confidential then they may choose to agree a settlement with Mr Gutierrez before the Remedy Hearing.

The details of Lucy Ward’s claim against Leeds United are set out in our previous articles which you can read here:

Leeds United now in Employment Tribunal and Leeds United Lose Employment Tribunal Case

In both cases, these clubs have been found to have acted in a discriminatory way towards their employees, which has highlighted the fact that employers must ensure that all employees are treated in a non-discriminatory manner. Employees do not need two years continuous service in order to bring a claim for discrimination, as is required for a lot of other Employment Tribunal claims, and compensation awards for discrimination are not capped as they are for other claims, so they can be substantial.

Both decisions have emphasised that relevant processes have perhaps not been followed as they should have been in relation to significant decisions regarding employee contracts. It is extremely important for employers to implement procedures correctly when dealing with such challenges. The Tribunal frequently identify subjective and impulsive decisions taken by management to terminate employees’ contracts, despite efforts to disguise the genuine reasons for such decisions. In both these cases the Judges identified the evasive manner of witnesses as being relevant to their decisions.

In order to avoid discrimination claims employers must put proper procedures in place to deal with such situations, and ensure that staff, particularly of senior management level, are properly trained to identify and deal with these situations effectively. Employers who face these situations should seek specialist advice and support as early as possible, the early investment of time and resources can help to avoid expensive litigation and negative PR and achieve the optimum outcome for all involved.

We here at Michael Lewin Solicitors provide a Total Legal Care (“TLC”) package to employers who require specialist advice and assistance with HR issues – the package is available at a fixed fee based on the headcount of employees at the business – if this is something you are interested in please do not hesitate to get in contact to discuss this further with the Head of the Employment Department – Ian Abel – on 0113 200 9728 or ianabel@michaellewin.co.uk.

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