EU Influence over UK Employment Law Rights

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The EU has had a major influence on UK employment law rights. The following were introduced by virtue of our membership of the EU, and are ‘at risk’ when we leave (this is not an exhaustive list):

  • Working time (which includes working hours and minimum paid annual leave)
  • Additional rights for agency and temporary workers and for part-time workers
  • Current pregnancy, maternity and parental leave rights
  • Some anti-discrimination rules
  • Data protection rights

There are also employment laws derived from the EU regarding transfer of undertakings, collective redundancies, and works councils. Some of these reflect the “Social Chapter” of the Maastricht Treaty adopted by the Government in 1997, thus ending the opt-out negotiated in 1991.

Peter Stanway, our BackupHR™ legal expert comments:

The UK has traditionally been among the most active opponents of European employment rights, grudgingly accepting many of the social aspects and only when it has had to. In many cases, such employment rights have been seen by governments as frustrating a flexible workforce and adding red-tape to businesses.

When the UK leaves the EU, the UK will regain parliamentary sovereignty. Our legislation will no longer have to follow the many EU directives that cover laws in the workplace. The Government would therefore be free to abolish or amend existing laws as it saw fit. While overall there will inevitably be some changes, the consequences are likely to be refinements and modest rather than wholesale changes to the framework around workplace law and, even then, subject to the political landscape at the time of the EU exit.

The question we wish to address is: How this does, or will it, make us different from our European neighbours?

The first thing to understand is that we are already very different in our approach and it is a myth that our laws are really just European laws written in English with the ‘odd tweak’. Our history of employment goes back to the Middle Ages, through to Victorian Factory Acts and post war responses to industrial conflict. We introduced Race, Sex and Disability discrimination laws well before ’Europe’ did so. The differences in our laws reflect our very different culture and the efforts of successive governments to avoid conflict and provide fairness at work. Our approach to employment law is a mid-Atlantic one. We are not so heavily prescribed that we need permission from government bodies to effect redundancies, or, so laissez-faire that we have the American concept of ‘employment at will’. Even the American model varies from state to state so when we occasionally get asked about employing people in America we have to advise them to find an ‘attorney’ in the state they will be employed in.

We have similar difficulty when it comes to Europe. We can look it up and guess but we know that what really matters is local knowledge of the culture and how these laws are implemented in practice. Yes we know that discrimination laws in Europe and America for example on sex and race will be similar to those in the UK. We know, however, that when it comes to age discrimination that in America, it only applies to over 40s. Likewise the French approach to religious discrimination appears to be very different to ours, given that they are an avowedly secular state.

Our unfair dismissal law is entirely UK based, being founded on several UK statutes and thousands of cases and the same can be said for redundancy, albeit with some EU restrictions around collective redundancies in larger organisations. British employment contracts are based on centuries of law evolving from the Master & Servant principle as well as modern case law about employment status. If we look at the Employee Handbooks which we recommend to our clients, there are many unique elements to UK employers. Examples would include Bribery, Modern Slavery and Whistleblowing policies, as well as some of the family friendly policies such as flexible working, adoption and shared parental leave. It is unlikely that these will be in removed due to Brexit but rather will continue to evolve organically, due to UK case law and political decisions about legislative priorities.

All our policies are written based on a deep understanding of UK employment law and personalised to reflect employer culture and need. Trying to impose a ‘foreign’ notion of how things should be done in the UK is in our experience a recipe for failure. Yes good HR is supra-national but cultural sensitivity and local knowledge can make a big difference to the success of global initiatives.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Small Alert Backuphr blue text post itCan the privilege that covers ‘protected conversations’ be waived? No, held the EAT giving the first judgment on ‘protected conversations’ in Faithorn, Farrell, Timms LLP v Bailey. Since July 2013 pre-termination negotiations have been inadmissible, (protected) in ordinary unfair dismissal claims, where the discussions took place with a view to the employment being terminated on terms agreed between the employer and the employee, (‘the pre-termination negotiations rule or a S.111 discussion’’). This is the position regardless of whether or not there is an existing dispute. However, if there has been ‘improper behaviour’ (e.g. bullying; discrimination; putting undue pressure on an employee), the rule only applies to the extent the tribunal considers just. This could mean disclosure of the details of the settlement negotiations.

Ms Bailey, a secretary in a firm of surveyors, brought claims for constructive dismissal and sex discrimination. An issue arose over the admissibility of evidence covered by s.111A of the Employment Right Act over a protected conversation that had taken place.

The EAT held that:

  • Section 111A protects not just the detail of the offer but also the fact that the pre-termination discussions have taken place, and this extends to any discussions held with a view to terminating the employment on agreed terms.
  • Internal conversations between managers and HR are also protected, as it is only right that these conversations should be conducted internally and forms part of the general discussions.
  • Privilege is removed where improper behaviour is found.
  • If no improper behaviour is established, then section 111A privilege cannot be waived, unlike without prejudice privilege which can be waived by the parties.

Peter Stanway, our BackupHR™ legal expert comments:

The case is important because it illustrates the complicated scenarios that may arise, when without prejudice and protected conversations overlap as they often do. If you have settlement discussions with an employee, but ultimately don’t reach agreement, there is a risk that the employee will seek to rely on the discussions as evidence to support a tribunal claim. Mostly these discussions will stay ‘off the record’.
There are some practical steps you can take to help ensure that settlement discussions are ‘off the record’ and cannot be relied on by an employee raising a tribunal claim, such as:

  • Full preparation by gathering all relevant information and deciding on the reasons for, and terms of, the settlement offer.
  • Stating verbally and/or in writing that all meetings and correspondence are confidential and without prejudice. You could also specifically state that it is your intention that the offer & discussions would not be admissible in any unfair dismissal claim.
  • Meeting with the employee, giving them time afterwards, at least 10 days, to consider your written proposals – be prepared for a period of negotiation.
  • Be careful what you say. Do not put undue pressure on the employee, and don’t make any incriminating or discriminatory admissions or comments.
  • Take issue early on with any attempts in a claim by the other party to refer to protected conversations, or without prejudice correspondence.
  • We call them crossroads conversations and stress that they have a choice.

It serves as a reminder that having discussions on this basis is not a straightforward process, and that it is essential that the necessary rules are complied with, in order to benefit from the protection. There are also fundamental differences between the way that section 111A and the without prejudice regime work in practice; which is why it is wise to get professional advice, and better still professional involvement in the process.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Small Alert Backuphr blue text post itE-cigarettes in the workplace pose difficult questions for UK employers. Should you treat them as if they are cigarettes or have different rules for their use?

Public Health England (PHE), the Government health agency have published new advice for employers on vaping in public places, which, recognises there is no one-size-fits-all approach. Introducing the guidance: Use of E-cigarettes in Public Places and Workplaces. Advice to Inform Evidence-based Policy Making.

Their guidance sets out five key principles for an approach based on current knowledge of e-cigarettes, with employers being advised to address the following:

  1. Make clear the distinction between vaping and smoking. In most cases our policy wording for our clients do treat them the same, insofar as they are banned or restricted and there are good reasons for doing so in most cases.
  2. Ensure policies are informed by the evidence on health risks to bystanders. This sounds sensible but in some cases employees object to vaping in their workspace and this should be respected, regardless of whether it is a health hazard or not, to the ‘passive vaper’.
  3. Identify and manage risks of uptake by children and young people. This will only rarely be an issue for our clients.
  4. Support smokers to stop smoking and stay smoke-free. This does represent good practice. The NHS offers a range of free services to help people to give up smoking.
  5. Support compliance with smoke-free law and policies. This ought no longer to be a problem although we do occasionally get questions about it from clients.

PHE says that in contrast to the known harm from exposure to second-hand smoke, there is currently no evidence of harm from second-hand e-cigarette vapour and the risks are likely to be extremely low.

Peter Stanway, our BackupHR™ legal expert comments:

It is now clear that vaping is less harmful than smoking and that e-cigarettes are helping many smokers to quit. Given the change in view, employers can consider being more tolerant and accommodating. This new framework should encourage organisations to consider both the benefits and the risks when developing their policies on e-cigarettes.

It is advisable to review your policy and decide whether what you have is adequate.

Other Actions:

  • The vapour from E-cigarettes might be annoying to some employees and needs consideration of the employee relations issues
  • Some E-cigarettes look very similar to real cigarettes so employees or customers may think that real cigarettes are being smoked in the workplace
  • You should consider organising a separate E-cigarette smoking area external to work premises, as vapers may not wish to be around smokers

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Employers face larger fines and even the prospect of a jail term, as tougher new rules on employing illegal workers were introduced on 12 July. While many are focused on the uncertain and probably distant consequences for employers of the EU referendum vote, a series of immediate measures from the Immigration Act 2016 have come into force. Some of these could have serious consequences for employers if they are not properly understood and adhered to.

The latest legislation follows on from the Immigration Act 2014, and the Government has let it be known that these new measures are intended to create a “hostile environment” for “undocumented” migrants.

The Act includes the following measures relating to employment:

  • It establishes a Director of Labour Market Enforcement.
  • It extends the offence of knowingly employing an illegal worker to include circumstances where the employer has reasonable cause to believe that a worker is not qualified to work because of his or her immigration status. This is likely to be a much stricter legal threshold for employers. The maximum prison sentence for this offence increases from two to five years.
  • It creates a new illegal working offence that criminalises those who work despite being subject to immigration control and having no right to work in the UK. Those convicted will face up to 51 weeks in prison and/or a fine. Their wages may also be seized as the proceeds of crime.
  • It gives Immigration Officers powers to search premises and to seize and retain documents for the purpose of investigation.
  • It allows the Secretary of Sate to introduce, by regulations, an immigration skills charge on businesses that use skilled migrant workers from outside the European Economic Area.

Peter Stanway, our BackupHR™ legal expert comments:

Three simple steps can protect your organisation from liability and criminal prosecution:

  • Always obtain an original right to work document from the Home Office’s prescribed list prior to employment commencing;
  • Check the authenticity and validity of the document in the presence of the employee in question; and
  • Keep clear electronic and/or hard copy of the checked document with a note of the date of the check and initials of the individual who verified the document.

It has always been important for employers to have sound “right to work” checking systems in place, but these latest tough changes in the law make it essential.

For more information Labour Market & Illegal Working.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Former Chelsea FC team doctor Eva Carneiro has settled her employment tribunal claim against the club and Jose Mourinho for an undisclosed sum. She left the club after being removed from first-team duties and brought claims for constructive dismissal and sex discrimination. Mourinho had publicly criticised Carneiro after she ran onto the pitch during a stoppage to treat Eden Hazard during a match in August 2015. Mourinho described her actions as “naive”. She left after her role was substantially changed, so she was no longer on the bench during matches.

Peter Stanway, our BackupHR™ legal expert comments:

Many speculated that this was unlikely to see the inside of the tribunal room and would settle for a large sum. She had declined the settlement option, apparently for £1.2m, in order to have the case heard in full. Whether it settled for more or less, we shall probably never know.

The case put to Chelsea was one of constructive dismissal, in that she had no choice but to leave the Club. Carneiro had also submitted a claim directly against Mourinho of sex discrimination and harassment.

Much of the case would have focused on the alleged explicit and inappropriate comments made by the former Chelsea Manager, including her claim that he had called her the “daughter of a whore” in Portuguese. She also claimed Chelsea took no action following complaints about sexually explicit chanting at away games, and a lack of female changing facilities. Further allegations were that she was not provided with a club suit, and regularly had to endure sexually explicit comments from colleagues.

The case was set to run for seven to ten days. It seems bizarre that a dispute that began with a doctor running onto a football pitch to help an injured player would end ten months later with a flurry of negotiations in Croydon Tribunal.

Although she will have her critics, this was a major victory for Dr Carneiro, who fought for justice in the male dominated world of Premier League football. Chelsea would have been keen to avoid the potential embarrassment of a personal feud going even more public. Mourinho’s new employers, Manchester United, would also have been keen to ensure that this did not drag on any longer.

To have succeeded with this, she would have had to demonstrate that Chelsea were in repudiatory breach of an express, or implied term of her contract. Depending on the job title and duties specified in her contract of employment, their unilateral decision to remove her from first team duties are likely to have constituted a breach of an express contractual term. However, even if her contract did not stipulate that she must be allowed to carry out this role, she may have be able to show taking away her first team position was a breach of the implied term of trust and confidence, so could regard herself as having been dismissed. The discrimination case also looked strong, which opened the door to uncapped compensation.

As is often the case, a single event occurs, which then gives rise to other complaints which ordinarily, rightly or wrongly, an employee would just tolerate. There were lots of opportunities to settle this matter. Many discrimination claims are genuine, but only emerge because of some other incident, such as redundancy or disciplinary action. Some are unfounded but are added to a claim to overcome the unfair dismissal cap, and to put the employer on the defensive.

It looks like another own goal for Chelsea but what can we learn?

  • Think very carefully before demoting employees
  • Deal quickly and effectively with actions which look discriminatory
  • Settle where you have a weak case or the PR problems will be substantial
  • Do not let egos get in the way and keep your key witness(es) onside

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Many employers will be looking to recruit people to work during the summer either to cover peaks in demand or holiday cover. A number of employers will also be considering them for a permanent position. So what do you need to know and, how does employing temporary people, compare to employing permanent staff?

Peter Stanway, our BackupHR™ legal expert comments:

It is worth noting terms such as ‘casual worker’, ‘temporary worker’ and ‘seasonal worker’ have no legal meaning. We would not recommend trying to get round the law by suggesting that they are ‘workers’ or ‘self-employed’.

Once employment status has been decided, employers should put their mind to that certain legal status, ensuring their actions and those of the business support that. It is best for seasonal staff to be employed on a fixed-term contract, which allows them to work either until the task is complete, or until a specified termination date. This matter will be decided when the employment contract is drawn up and the employer must comply with the agreement. It is wise to avoid just giving a permanent contract with a verbal explanation that this is all you have. Some employers will try to get away with issuing no contract, either because they know no better or because they rely on the fact that they can get away with not issuing a contract for eight weeks. We would not recommend either approach and suggest a carefully drafted version of the permanent contract is issued. Fixed term contracts are a bit of a misnomer in that they can be for an indeterminate time and have termination provisions in them, but the term comes from Europe and no-one sought to make it plain English.

Unless there are special circumstances, temporary employees on a fixed term are entitled to the same working conditions as their permanent employee counterparts. This means that they should receive the same pay, holidays, rest periods and working hours as everyone else employed by the company.

If you employ a temporary worker through an agency, there are other pros and cons regarding quality, legalities and paperwork. The Agency Worker Regulations have had a big impact on businesses that hire temporary staff. Since 2011 agency temps are entitled to the same basic pay and conditions as permanent staff if employed for longer than 12 weeks. They will also be entitled to the same commission, overtime and premium payments. If employed for less than 12 weeks, they are entitled to the same benefits as permanent staff in terms of canteen use, childcare facilities, vacancy notifications and transport services.

Performance issues crop up regularly when it comes to seasonal staff. As temporary employees are usually on a short-term contract, you won’t have long to wait until their term is up and can end the partnership on good terms, but terminate earlier if it is going badly and is irretrievable.

You, therefore, need to ensure that you:

  • have the right to terminate before the end of the fixed term;
  • check that any termination or non-renewal of a temporary contract doesn’t give rise to claims of discrimination;
  • keep the relationship under regular review so that temps do not just drift into ‘permanence’, or they are made permanent without a corresponding change of contract;
  • induct and otherwise properly train and supervise them;

There are positives and negatives to hiring temporary staff for a business, no matter what the sector. Maintaining a flexible but fair approach to temporary staff is extremely beneficial for you – not only to protect your reputation and for easier working processes, but also to keep good relationships with returning temps, should they be needed. Whether or not those people are an asset will largely depend on the quality of the temporary staff themselves and their Line Managers, who can fail to properly utilise the valuable resource at their disposal.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Alcohol and drugs policies don’t have to be limited to what is and isn’t allowed in the law. Alcohol use, for instance, is an accepted part of social life, and some workplaces allow a degree of social drinking. In any event, most employers now have some sort of alcohol and/or drugs policy which can be used to ensure problems are dealt with effectively, consistently, and promptly. The recent increase in the use of so-called ‘legal highs’ means that these policies need to be revisited, and perhaps updated.

Even more significantly the Psychoactive Substances Act 2016, which came into force on 26 May, made it a criminal offence to produce, supply, offer to supply, possess with intent to supply, and import or export psychoactive substances. The Act covers any substance which is deemed to be psychoactive; that is, any substance intended for human consumption which is capable of producing a psychoactive effect. When consumed, legal highs generally imitate the effects of illegal drugs and, sadly, last year there were 129 deaths in England, Scotland and Wales related to their use.

So if the law has changed, are they now illegal highs? The answer is that they are still legal to consume but the Act is designed to allow the police and local authorities to clamp down on websites and shops which currently trade in legal highs. It does not criminalise people using them, although the police will be able to stop and search individuals.

Peter Stanway, our BackupHR™ legal expert comments:

Whilst legal highs are, by definition, ‘legal’, policies should not be limited to what is legal. Employers can include the use of legal highs along with illegal drug and alcohol abuse. Given the increased use of legal highs and the ease with which they can be purchased, the problem is significant. The Act prohibits supplying these substances, but many employers will want to prohibit their consumption on their business premises as well.

Employers have a legal obligation to ensure a safe working environment, and an employer who turns a blind eye to any form of substance abuse is unlikely to have discharged their duties. There are severe penalties for employers who fail to prevent accidents caused by the actions of an ‘unsafe employee’.

Higher absence rates and lower productivity may also be indicative of a problem with abuse of alcohol, drugs or other substances.

Action Points for Employers

Your actions will be determined by whether you already have a good policy. If you have, then you should:

  • Revise and communicate drug and alcohol policies to cover the use of legal highs, which is what we are doing with our clients.

If you do not have a proper policy then you should:

  • Introduce a policy to help employees recognise the dangers of misusing alcohol, drugs or ‘legal highs’, which encourages them to take action and get the help they need.

In either event, you should also be prepared to take firm disciplinary action with people who choose to put their own enjoyment above the safety and welfare of their colleagues, or the public. Managers who have a good rapport with their staff and are well trained, will be better equipped to notice the signs of drug use and what to be aware of, as well as how to deal appropriately with an employee attending work ‘under the influence’.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

A Bakery has been ordered to pay £650 to an employee who failed to turn up for work for months because he was in prison. Joseph Carter won an employment tribunal against Aulds Bakers for unfair dismissal after being jailed for dangerous driving and breach of the peace.

Mr Carter was employed from 2005, but his last working day was in September 2013, when he was convicted and sentenced to 6 months in prison. After he was sentenced, his partner informed the employer of this, and requested that holiday be taken, however neither she, nor Mr Carter, made any formal request for authorised or unpaid leave to cover the full length of the conviction. He did not get in touch with anyone from the Company until his release from prison. In November he had received a letter from Aulds terminating his employment, because he had “frustrated” his contract. He appealed and was partially successful. The reason for his dismissal was changed to unauthorised absence and failure to report it. He was not reinstated as he had not disclosed the length of time he would be absent, or agreed an authorised absence.

His claim for unfair dismissal was successful because no procedure had been followed. The Company argued that the subsequent appeal hearing rectified this issue, but the Tribunal Judge disagreed, and held that the dismissal was unfair partly because the appeal process had made things worse! He then considered what remedy would be appropriate and felt that reinstatement would be impractical as he had contributed to his dismissal by being imprisoned and not effectively communicating this absence. He also reduced the basic and compensatory awards by 100% for the same reason.

The Claimant appealed and the EAT accepted the appeal. It agreed the Tribunal was entitled to conclude that his conduct made him responsible for his dismissal, but the Judge should have considered whether a complete reduction should have been applied, taking into account all other circumstances, so should have considered what percentage of reduction to apply.

The case was sent back to the same judge who amended his basic award from a 100% “wholly to blame” reduction, to a 75% “largely to blame” reduction, but still found he should be given nothing by way of a compensatory award. Ordinarily, he would have received almost £14,000, but in the end he received just £651.02. It is likely that once he pays his costs for bringing the tribunal, he will be left with nothing.

Peter Stanway, our BackupHR™ legal expert comments:

This case highlights the need for a proper procedure in all dismissals, regardless of the reason. Had Aulds complied with both their own disciplinary procedure and the ACAS Code of Practice, he may well have been fairly dismissed.

Frustration is a difficult legal concept in employment law terms, as tribunals are usually reluctant to accept it as a reason, because it deprives the ex employee of any legal redress. Our advice would be that it should only be actively considered for longer periods of imprisonment and acted on quickly.

If an employee is sentenced to prison for a short period, the best thing to do is treat it as an absence issue and deal with as well as you can with someone with limited ability to communicate.

A dismissal can be unfair but not be awarded any compensation. If the dismissal is unfair but the Claimant’s conduct is the main reason for the dismissal then a tribunal can deduct compensation if it is just and equitable to do so. In many cases the award is reduced due to contributory fault. This is a key reason we often advise individuals with a strong case, that it would be unwise to pursue it.

Key learning:

  • Get professional advice if someone is about to be or already has been jailed.
  • Follow your procedures which should mirror the ACAS Code.
  • Litigation is an uncertain process and it is best to settle if you have failed to apply your procedure.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Employment Appeal Tribunal (EAT) has recently considered whether an employer dismissed an employee fairly, in the mistaken belief they no longer had the right to work in the UK. In Nayak v Royal Mail Ltd, the employee started work with the Royal Mail in January 2008 with a work visa which expired in April 2009. This process went on for several years with, Royal Mail trying to establish the claimant’s immigration status, with little cooperation from Mr Nayak. Royal Mail had a policy that, when a visa application outcome was pending, it would carry out employee immigration checks every six months, even though such checks were not legally required. They had warned the employee that his continued failure to provide the necessary documentation may result in his dismissal, which eventually he was.

The EAT assessed whether an employer could fairly dismiss an employee who they believed no longer had a right to work in the UK, regardless of the employee’s true immigration status. They held that the employer’s reasonable and genuine belief that the claimant did not have the requisite immigration status was enough to justify the dismissal on the grounds of “Some Other Substantial Reason”. The employer had done enough to investigate the position and the dismissal was procedurally fair.

Peter Stanway, our BackupHR™ legal expert comments:

One of the potentially fair reasons for dismissal is some other substantial reason (SOSR). An alternative fair reason is that continued employment would be a breach of a statutory duty (often referred to as “illegality”). It is unlawful to employ an individual who does not have the right to work in the UK, or is working in breach of their conditions to stay in the UK. Employers have a legal obligation to carry out pre-employment checks. Failure to do so can mean liability for a civil penalty of up to £20,000 per illegal worker.

His unfair dismissal claim was rejected by an employment tribunal on the basis that a reasonable employer would not be satisfied that the employee’s visa application was still pending and undetermined. The EAT dismissed the claimant’s appeal and upheld the decision that the dismissal was both substantively and procedurally fair.

The EAT found that there was insufficient evidence available of a right to work in the UK. Royal Mail therefore acted reasonably in treating this as a SOSR dismissal. They pointed to:

  • Royal Mail made numerous enquiries to the Home Office, and had not received a conclusive response.
  • The visa application had been outstanding for a long period of time.
  • Mr Nayak had persistently failed to provide evidence of his status, even when he knew it could result in his dismissal.

The case demonstrates that a SOSR dismissal will be fair where an employer has a reasonable and genuine belief that the employee no longer had the right to work in the UK, whether that belief turns out to be correct or not. This should be distinguished from dismissal for breach of a statutory duty. This may prove useful to employers where, as in this case, there is insufficient evidence to allow the employer to dismiss by relying on breach of a statutory restriction.

Action Points for Employers

  • Maintain immigration and right to work policies/procedures and ensure that they are up to date and properly utilised. The EAT said the policy of checking employees’ right to work every 6 months was reasonable and responsible.
  • Take copies of appropriate documentation and maintain a good audit trail.
  • Act with caution before dismissing. This is in light of the fact that the Home Office usually expects employers in these circumstances to use the Employer Checking Service, rather than, imposing an expectation that a migrant worker should instead produce different evidence of his right to work, and then dismiss him for not complying.
  • Use the Home Office checking system in the first instance.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

An employment tribunal recently found that Newcastle United football club discriminated against former player, Jonas Gutierrez, on the grounds of disability and now the club faces paying compensation, which the media have widely reported could be around £2 million. Gutierrez was successful in two of the four claims he brought against Newcastle including, direct discrimination and failure to make reasonable adjustments.

Gutierrez joined Newcastle in 2008 and was a prominent first team player. He was first diagnosed with testicular cancer in 2013 and, as a result, took time out from the club to have surgery in his home country of Argentina. In the summer of 2014 Gutierrez’s cancer returned but, after undergoing chemotherapy, he made a full recovery and returned to the club in late 2014.

In the summer of 2015, Newcastle informed Gutierrez that they would not be renewing his contract, and because he had not made 80 appearances for the club, the automatic one year extension clause of his contract would not apply. He claimed Newcastle had not played him on purpose, with the sole aim of ensuring that he could not fulfil the 80 game quota, and trigger the appearance-based contract extension. In effect, he argued he had been “frozen out” of the first team squad because he had had cancer. Gutierrez told the Tribunal “I think they feared that my illness would mean that I could no longer play at the highest level, and they considered me to be a liability rather than an asset to the club.” The Tribunal preferred Gutierrez’s evidence to Newcastle’s, and found in his favour.

Peter Stanway, our BackupHR™ legal expert comments:

Under the Equality Act 2010, a person is protected against disability discrimination, if they can show that they have a physical or mental impairment, which has a substantial and long term adverse effect on their ability to carry out normal day to day activities. However, certain conditions are automatically regarded as disabilities under the Act, including cancer (as in this case).

This case demonstrates that all employers, no matter what their status, have the same duties under the Act, and even highly paid employees such as Premier League footballers, are protected under discrimination law.

While many people may be surprised that a sportsperson, who had successfully undergone medical treatment could be regarded as disabled; that is the nature of the protection afforded to people who have, or have had cancer. Non-renewal of a fixed-term contract is a dismissal.

It has not yet been decided what Gutierrez is to be awarded as compensation, but this decision shows that the cost of getting it wrong can be huge, in a financial and reputational sense.

Actions

  • No one is above the laws on discrimination.
  • If you are going to fight an Employment Tribunal ensure you have strong case with good witnesses and a good paper trail.
  • If you do not have a policy on disability then you should.
  • If you have a policy but choose to ignore it, you could end up scoring an own goal.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.