Footballer was discriminated against because of his cancer

Employers need to take steps to keep the right side of the Equality Act

The tricky – and often sensitive – subject of workplace health is once again in the spotlight following a successful employment tribunal claim by ex-Argentina international footballer Jonas Gutierrez against Newcastle United FC.

The key aspects of the tribunal’s decision are that the football club:

  • discriminated against the player by restricting his match appearances in order to avoid triggering a mandatory contract extension following his diagnosis with testicular cancer
  • failed to make reasonable adjustments to accommodate his condition as required by the Equality Act 2010.

Successful disability discrimination claims can be particularly costly for employers as tribunal awards are uncapped. Gutierrez is reportedly seeking compensation of around £2 million. The potential for significant financial exposure, coupled with almost inevitable reputational damage, could cause serious damage to an employer in a similar situation. But there are steps employers should consider in order to minimise the risk of successful cancer-related discrimination claims.

Increased awareness of what amounts to a disability is key. Cancer is a disability under the Act, so employers do not have to determine this themselves using the standard test, which is often a complex process. Employees with cancer are considered to be disabled from day one of their diagnosis, and during remission, irrespective of what effect their symptoms have on their day-to-day activities. This has been the case for nearly six years, but recent studies suggest a significant number of those with cancer believe they have experienced discrimination at work. Cancer Research UK suggests that 50 per cent of individuals born after 1960 will be diagnosed with some form of cancer in their lifetime, so increased knowledge on the part of employers is essential.

Organisations have a duty to make reasonable adjustments to combat any ‘substantial disadvantage’ faced by employees with cancer, and compliance with this duty will go some way towards staying on the right side of the law. Employers should take steps to understand their employee’s symptoms from the outset, including the potential impact on his or her work. It’s a good idea to obtain medical evidence at an early stage, preferably from experienced occupational health (OH) specialists who can advise those involved on possible adjustments that work for both the employer and the employee. Continued dialogue with employees themselves is also crucial.

The key thing for employers to remember when considering adjustments is that they must be reasonable. Employers should not simply accept OH recommendations as gospel, but should think about any recommendations in the light of the facts and circumstances of each employee’s case. For example, minimal adjustments may be required for an employee who is in remission, but far more may be necessary for an employee undergoing chemotherapy. Equally, some employees may be able to work through their treatment with little or no adjustments. No two cases will be the same.

The Equality and Human Rights Commission’s statutory code of practice suggests adjustments for employers to consider, including reducing an employee’s workload, making physical adjustments to the workplace, altering working pattern or hours, or allowing a period of leave for treatment and rehabilitation.

The code also suggests modifying policies and procedures dealing with discipline, capability and redundancy may be reasonable. This doesn’t necessarily mean an employee with cancer should not be involved in regular workplace processes such as redundancy exercises or performance reviews, but it is crucial that employers adjust these processes appropriately to take account of an employee’s cancer, not least to avoid the risk of claims. In practice, this often involves discounting periods of cancer-related absence, using pre-cancer appraisals to assess performance, and holding consultation meetings away from the workplace.

While the risk of employers receiving disability discrimination claims can never totally be eliminated, if employers take steps to understand the nature of an employee’s cancer, think carefully about decisions in relation to such employees, and ensure appropriate reasonable adjustments are put in place, employers will have the best possible chance of giving disability discrimination claims the ‘red card’.


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