It’s been reported recently that Jonas Gutierrez is considering suing Newcastle United Football Club for disability discrimination relating to the non-renewal of his contract to play for the club in the summer of 2015.

Jonas had been suffering from testicular cancer before making his comeback during the 2014-15 season to widespread applause from Newcastle fans and opposing fans alike.  However, he still remained largely side-lined until the end of the season at which point he was outspoken in his disappointment at having been informed of the non-renewal by telephone rather than face-to-face.

Some legal points to start off with:

  • non-renewal of a fixed term contract is still a dismissal and employers need to have a fair reason for a dismissal once the employee has reached 2 years’ length of service (NB: expiry of a fixed term contract does not count as a fair reason!). Gutierrez was at the club for 7 years;
  • the 2 year time qualifying period does not apply if the dismissal is discriminatory under the Equality Act, such as disability discrimination;
  • Cancer is a disability, and you can be protected under disability discrimination provisions even if you are in remission.

One of the most common fair reasons for dismissal upon expiry of a fixed term contract is redundancy – where there is simply no need for the role going forward but where the employer should still go through a fair redundancy process. Did Newcastle United Football club have a reduced need for midfielders in the summer?  Unlikely. It’s far more likely that the club dispensed with his services for “capability” reasons. Looking at things from the outside, it is impossible to know what the medical prognosis was for Jonas.

However, employers should tread carefully when making dismissal decisions about those suffering from cancer. They should obtain up to date medical assessments as to the employee’s future ability to provide full service. They should allow a phased returned to work and consider what reasonable adjustments could be made to help the employee overcome any substantial disadvantage suffered because of the disability. But the employer is not required to keep jobs open to someone who will not be capable of performing their contract. Employers would be well advised to search for alternative roles as an alternative to dismissal, but it is difficult to see how that would work for a professional footballer in practice. In many respects, the fact that Jonas suffered from cancer does not make the situation any different from those players who have struggled to recover from serious leg injuries.

So why don’t we hear a lot more about similar potential legal action? Usually only because football clubs tend to prefer to deal with matters in-house and keep such issues away from the press.  If there was indeed very little prospect for Jonas getting back to full fitness, the club may well have been within its rights not to renew the contract, however there are ways and means of doing this which can limit the public fallout.

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