What counts as a disability in the workplace, including football clubs?
You may have heard in the news recently about former Newcastle United player Jonas Gutierrez winning a claim in the Employment Tribunal against his former club. The midfielder, who claimed that Newcastle dropped him from the team after he was diagnosed with testicular cancer, won his case (to include an undisclosed damages package) on the basis of disability discrimination.
This got us thinking about what does and doesn’t constitute disability discrimination and whether our clients necessarily know the distinction.
Under employment law in England and Wales, a disability is described as:
‘a physical or mental impairment which has a substantially adverse and long-term effect on their ability to carry out normal day-to-day activities.’
As this definition shows, the scope for what could conceivably be considered to be a disability is fairly wide. The potential for disability discrimination in a place of work may therefore pose a far greater risk than you may have appreciated.
For example, as the Newcastle case demonstrates very clearly, a diagnosis of cancer is expressly deemed a disability under the Equality Act 2010.
Similarly, employers will need to consider that conditions such as obesity, alcoholism etc which although not considered disabilities in their own right, could be considered as such should the condition cause the employee an impairment which is substantially adverse and long-term.
As well as direct discrimination against an employee considered to have a disability, employers also need to be aware of indirect discrimination (imposing a rule in the workplace that does not make allowances for disabled staff), harassment, victimisation and failing to make reasonable adjustments for disabled staff members; all of which can give rise to employment claims.
Employers also need to be mindful that if mismanaged, awards arising from disability discrimination claims have no cap on compensation limits; thus presenting a significant risk.
With cancer affecting so many, and conditions such as obesity on the increase, managing this risk is vital. Employers need to be aware of their obligations towards employees and have the knowledge and support on how to deal with staff members effectively.