You may have read in the press about the recent Employment Tribunal case where premiership footballer Jonas Gutierrez brought a claim against his former club Newcastle United. This case was widely reported after the Employment Tribunal made a finding in mid-April 2016 that the football club had discriminated against the footballer on the grounds of his disability.
The footballer had been diagnosed with testicular cancer and claimed that following his medical treatment, the club acted in a way to make it impossible for him to remain in his role for another season. The Employment Judge agreed.
Cancer is one of the deemed conditions in the Equality Act 2010 that automatically qualify as a disability for the purposes of the Act. Other conditions that automatically qualify include blindness, severe disfigurement, HIV infection and multiple sclerosis.
Conditions that are not expressly set out in the Act as a deemed disability carry uncertainty and it is often the first hurdle for a disabled claimant to get over before they can go on with a claim. Often an Employment Judge, with assistance from a medical report will need to determine whether the condition is a disability in line with the definition in the Act, namely:
“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. (Section 6(1), EqA 2010.)
Interestingly the Act also specifies some conditions that will never be considered as disabilities, this list includes a tendency to set fires, exhibitionism, tattoos and body piercing.
This issue is a reminder to employers to act fairly in the way they treat staff who are unwell. The case has been remitted for a remedy hearing where it is expected the footballer will gain a rather large compensation sum.
Please contact WBW Solicitors’ employment team if you would like further advice related to this issue or any other employment law issues.
DISCLAIMER: This note reflects the law at the date of publication which is 15 April 2016. The content of this note is for general information only. Nothing in this note constitutes legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.