The tricky subject of workplace health is once again in the spotlight following a successful employment tribunal claim by ex-Argentina international footballer Jonas Gutierrez against Newcastle United FC.
The key aspects of the tribunal’s decision are that the football club:
- Discriminated against the player by restricting his match appearances in order to avoid triggering a mandatory contract extension following his diagnosis with testicular cancer
- Failed to make reasonable adjustments to accommodate his condition as required by the Equality Act 2010.
Gutierrez is reportedly seeking compensation of around £2 million. The potential for significant financial exposure, coupled with almost inevitable reputational damage, could cause serious damage to an employer in a similar situation. But there are steps you can consider in order to minimise the risk of successful cancer-related discrimination claims. Increased awareness of what amounts to a disability is key.
Cancer is a disability under the Act, so you do not have to determine this yourselves using the standard test, which is often a complex process. Employees with cancer are considered to be disabled from day one of their diagnosis, and during remission, irrespective of what effect their symptoms have on their day-to-day activities.
Organisations have a duty to make reasonable adjustments to combat any ‘substantial disadvantage’ faced by employees with cancer, and compliance with this duty will go some way towards staying on the right side of the law. Employers should take steps to understand their employee’s symptoms from the outset, including the potential impact on his or her work. It’s a good idea to obtain medical evidence at an early stage, preferably from experienced occupational health (OH) specialists who can advise those involved on possible adjustments that work for both the employer and the employee. Continued dialogue with employees themselves is also crucial.
The key thing to remember when considering adjustments is that they must be reason- able. Employers should not simply accept OH recommendations as gospel, but should think about any recommendations in the light of the facts and circumstances of each employee’s case. For example, minimal adjustments may be required for an employee who is in remission, but far more may be necessary for an employee undergoing chemotherapy. Equally, some employees may be able to work through their treatment with little or no adjustments. No two cases will be the same.