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Football clubs lose employment tribunal cases

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Two football clubs are in the news for unwanted reasons having both lost employment tribunal cases in the space of a few days.  Both Jonas Gutierrez (against Newcastle United) and then Lucy Ward (against Leeds United) were successful in their claims against their former employers; in Mr Gutierrez’s case, for disability discrimination and in Ms Ward’s case, for unfair dismissal and sex discrimination.

Mr Gutierrez is a former Newcastle United midfielder who now plays in Spain.  His case centred around events following him being diagnosed with testicular cancer in October 2013.  As cancer is a “deemed disability” under the Equality Act 2010, there was no need to satisfy the usual criteria required to prove that someone is suffering from a disability and Mr Gutierrez was therefore classed as suffering from a disability.  He claimed that he was poorly treated following the diagnosis and was not selected during the second half of the 2014-2015 Premier League season (the final year of his contract) so that the club could avoid triggering an automatic contract extension based on the number of games played.

The Tribunal decided that following Mr Gutierrez’s return to the club in November 2013 following treatment, he was told that he was no longer part of the club’s plans and the Tribunal concluded that this was because of his cancer.  The Tribunal also found that Mr Gutierrez was not considered for selection following his return to fitness until he could no longer achieve the required number of starts to achieve a contract extension and this was a failure by the club to make reasonable adjustments. 

Claims of unfavourable treatment and harassment were dismissed.   A further hearing will be held in due course to decide what remedy Mr Gutierrez should receive although the club say that they are considering their further options.

Ms Ward’s case also involved discrimination, in her case to do with her sex; a person’s sex is one of the “protected characteristics” that must not be discriminated against under the Equality Act, along with disability, age, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation.

She also succeeded in a claim for unfair dismissal. 

Ms Ward had worked at the club for a number of years, most recently as the club’s education and welfare officer, but was dismissed, purportedly because of exceeding her annual leave entitlement, following her travelling to Canada to work for the BBC at the 2015 Women’s World Cup.  Ms Ward claimed that she was in fact dismissed because she was former head coach Neil Redfearn’s partner and the Tribunal found that on the balance of probabilities, the club chairman had told the chief executive that Ms Ward had to leave the club. The club had claimed that Ms Ward had repeatedly failed to work on a Wednesday but Ms Ward responded that she worked from home on that day and this was well known to the club. 

The Tribunal ruled that the club had taken a sexist view and that their reasons for dismissal were a “sham”.  One of the club’s witnesses had also alleged that Ms Ward was a strong character who had intimidated her line manager but the Tribunal found Ms Ward neither aggressive nor disruptive.

In both cases, the clubs were found to have acted in a discriminatory way towards the employees.  Both cases highlight the fact that employers need to be careful to ensure that all employees are treated in a non-discriminatory manner.  Awards for discrimination are not subject to the statutory cap imposed on claims for unfair dismissal and other claims and can therefore be substantial.  Employees also do not need 2 continuous years’ service (as they do for a lot of other Employment Tribunal claims, including unfair dismissal) in order to bring such a claim.  In order to prevent such discrimination occurring in the workplace as far as possible, employers should ensure that proper procedures are in place to guard against and deal with such situations occurring and all staff should be made aware of these.  Employers should also ensure that staff, in particular those senior management level , are trained to spot and deal with such situations effectively.

If you are an employer or an employee dealing with an allegation of discrimination, or any other aspect of employment law or HR, please do not hesitate to contact a member of Chattertons’ employment team.