Mr Gutierrez, 32, played for Newcastle United, a Premier League football club, as a midfielder between 2008 and 2015, becoming a fan’s favourite. In 2013 Mr Gutierrez was diagnosed with testicular cancer and he underwent surgery in October 2013 to remove a tumour. After a period of recovery in Argentina from his condition, Mr Gutierrez returned to play for Newcastle United in March 2015. However, just a few weeks after he returned to play for the club Mr Gutierrez was told by the then-manager, Alan Pardew, that he was surplus to requirements at the club, that his contract at the club was not being renewed, and that he was free to agree terms with another club.
After the conclusion of his contract with Newcastle United Mr Gutierrez made a claim in the Employment Tribunal for disability discrimination, alleging that he had been dismissed as a result of his cancer diagnosis and treatment. The midfielder alleged that the club had limited the number of his appearances in his final season so as to prevent him from reaching 80 appearances, which was the benchmarked needed in order to trigger an automatic one-year extension to his contract with the club. Mr Gutierrez further contended that the reason why the club did not wish to extend his contract was because they no longer wanted him at the club due to his cancer.
Mr Gutierrez’s claim came to the Birmingham Employment Tribunal earlier this year. Giving evidence at the Tribunal, Mr Gutierrez stated in evidence that he had been shocked by the club’s “sudden change of heart” towards him and that Newcastle United feared that Mr Gutierrez was a “liability” who “could no longer play at the highest level” due to his illness. Mr Gutierrez also stated in evidence that he had paid for his own cancer treatment and that he had felt that the club had treated him ‘poorly’, alleging that neither any club directors nor Mr Pardew had contacted during his chemotherapy treatment in order to check on his recovery.
The Employment Tribunal gave judgment in Mr Gutierrez’s claim last week, upholding two out of four claims of direct disability discrimination. The Tribunal concluded that “the reason why the responded managed the claimant’s selection was because they no longer wanted him at the club because of his cancer”, adding that the club had “made a very rapid decision” that they no longer wished to have him at the club “…because of his cancer”. A remedies hearing will be held in due course to determine the compensation that Mr Gutierrez will receive.
Newcastle United commented on the judgment: “We recognise that the task facing the tribunal was a difficult one, but we are dismayed by its decision. We will now take time to consider the judgment in full and consult with our legal team to understand the options available to us.”
Mr Gutierrez has not commented on the judgment directly as yet.
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the judgment of the Tribunal: “Employers should not discriminated against employees (or consultants, or any other form of workers) due to a disability that an employee (or a third party) possesses; if an employee is treated unequally due to a disability then that employee may have a potential disability discrimination claim. Such claims can be time-consuming, expensive, and potentially reputationally-damaging.”