Newcastle United hit the headlines for non-footballing reasons last week when they were found to have discriminated on the grounds of disability against one of their former players, Jonas Gutierrez. Apart from its high profile nature, the case has several interesting points for small business which often worry (unnecessarily) about disability issues.
The first thing to remember is that anyone diagnosed with cancer is classed as disabled under the Equality Act – no matter how early in the disease or how “healthy” the individual may appear. It seems that Newcastle either failed to accept this or chose to ignore it.
Secondly – an employer has a duty to make reasonable adjustments to allow a disabled employee to undertake their work. Reasonable is the key word here – it needs to take account of the size of business, nature of the work being done and how practical it is to make the adjustment. An “adjustment” need not be some physical change – it could be that you accept that someone with a disability has their targets or outputs adjusted, or even something as simple as allowing home working if the job can still be done that way. In Newcastle’s case, it was not adjusting the appearance target required to trigger a contract extension, given Gutierrez’ need to attend treatment. (They then compounded this by an act of direct discrimination, by not picking him when he was fit to ensure he couldn’t achieve the appearance target).
Thirdly, the case shows that if you are taken to tribunal – for any reason – it is important to have a clear and convincing argument that would sound reasonable to anyone not involved in the case. The tribunal concluded that senior figures at the football club were “evasive”, “vague” and “lacking in credibility”. Contrary to the view of some employers, tribunal judges aren’t biased in favour of employees but they are generally adept at spotting bulls*t – whether this comes from the individual making the claim or the employer’s witnesses.
As always, the advice is to consider what you can do to help an employee diagnosed with cancer or with any other form of disability; but that can be balanced against what you can realistically do as a business. And if you have made an error, don’t try to defend the indefensible!