Jonas Gutierrez Case: Understanding discrimination in the workplace and how to avoid it

By Zee Hussain

December 8 2015 - In October 2015, Jonas Gutierrez, a former Newcastle United player was reported to be alleging disability discrimination against Tyneside club after being diagnosed with testicular cancer. After 18 months of treatment and recovery, he returned to the game in March 2015. Despite returning in full force by scoring the winning goal for the club in the last game of the season, a decision was made not to offer him a new contract at the end of the season. To make matters more distressing, the decision was impersonally conversed over the telephone. The method of breaking the news has caused Gutierrez great upset as he feels the club has shown a lack of empathy towards him and ought to have given him the chance to thank his fans at the last game of the season.

In the light of this, Zee Hussain, employment partner at Simpson Millar explains what constitutes discrimination in the workplace whilst providing practical guidance on how to avoid it.

The consequences of discrimination

The dreaded word 'discrimination' is not something most employers would wish to be linked with in any way, and even more so if it concerns an employer of such high calibre. The consequence is like to be heavy fines and bad publicity.

Compensation in discrimination cases is uncapped unlike claims for unfair dismissal where a case can be quantified; under the Equality Act 2010 protection against discrimination can cover to at least £2 million.

Should the matter proceed to a tribunal, anybody can attend a hearing to observe, therefore bad press would be a huge issue for the club should the matter proceed to trial.

How can employers avoid being accused of disability discrimination?

Employers must promote fairness and equality amongst their workforce, whatever they industry, with a zero tolerance to discrimination of any kind.

If an employee discriminates or harasses another employee, the employer will be liable for those actions unless they have taken reasonable steps to prevent such conduct taking place. A good way to do this is to have clear policies setting out the protected characteristics, what is not acceptable and the consequences to the employee on breaching the policy.

It is vital that employers make employees aware of the protected characteristics and be mindful of them at all times, to ensure that they are able to stamp out any level of discrimination at the earliest stage.

What amounts to a disability?

The technical definition of a disability is:

A physical or mental impairment which has a substantial and long-term adverse effect on an individual's ability to carry out normal day-to-day activities.

In practice, that doesn't really help employers much as the definition is very broad.

The definition does pose 4 essential questions for employers to ask themselves when considering a possible disability:

1. Does the individual have a physical or mental impairment?
2. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
3. Is the effect substantial?
4. Is the effect long-term?

Amongst other common conditions such as Eczema, Dyslexia, Severe allergic reaction, Diabetes and HIV, Cancer, in Gutierrez's case, is another condition that falls within the definition of a disability under The Equality Act 2010. From the point an individual is diagnosed with cancer, they are afforded protection against discrimination under the Equality Act.

In practice, if you are concerned about whether an employee's condition amounts to a disability, it is always a safe and sensible option to obtain medical evidence, ensuring you ask the 4 questions set out above in order to obtain a medical opinion on whether the employee is suffering from a disability and if so, what reasonable adjustments can the medical expert recommend.

Once it has been established that an employee does have a disability, what must an employer be aware of?

It is unlawful for an employer to do any of the following:

• Discriminate directly in treating a job applicant or employee less favourably than others because of their disability.
• Discriminate by treating a job applicant or employee unfavourably because of something arising in consequence of disability without objective justification.
• Discriminate indirectly by applying a provision, criterion or practice that disadvantages applicants or employees with a shared disability without objective justification.
• Fail to comply with their duty to make reasonable adjustments where a disabled applicant or employee is places at a substantial disadvantage.
• Subject a job applicant or employee to harassment relating to a disability.
• Victimise a job applicant or employee because they have made or intend to make a disability discrimination claim under the Equality Act 2010 or take other steps under the Act.
• Ask job applicants pre-employment health questions other than for a prescribed reason - if in doubt, do not ask before seeking legal advice.

In this case, Gutierrez will need to show that the unfavourable treatment arises as a consequence of his disability. One of the most obvious instances of unfavourable treatment is where an employee is treated unfavourably because of a period of disability-related absence. Gutierrez has made it very clear via the press that his absences during his time with the Club were disability related.

The Club could successfully defend the claim IF they can show that the way they treated Gutierrez was a proportionate mean of achieving a legitimate aim.

There has been little detail released on the facts of the claim lodged by Gutierrez but it seems likely that he will be arguing that the termination of his engagement with the Club was linked to his disability related absence and using his positive performance in the last game of the season as an example as to why he feels this is the case and not that he was no longer up to the job.

This case is one for employers to keep an eye on. However, due to the nature of the employer in this matter, it will be interesting to see just how much of the case will be made public. If the matter proceeds to a tribunal hearing, the employer will have little control over information leaking to the public, which may be the aim overall for Gutierrez, to raise public awareness on this type of conduct. Time will only tell.

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