The recent case of Jonas Gutierrez against Newcastle United has produced a lot of media interest particularly concerning the form of the discrimination to which he was subjected and the clubs failure to make reasonable adjustments in the operation of their automatically renewable contract.
However, in this case the footballer did not have to overcome the usual first hurdle in a disability discrimination claim namely, is the claimant disabled?
This was not a problem for Gutierrez as cancer along with other conditions such as eczema, dyslexia, diabetes and HIV are all deemed to fall within the definition of a disability.
Where a condition does not automatically satisfy the definition then it must satisfy four tests:
- Does the claimant have a physical or mental impairment?
- Does the impairment have an adverse effect on the claimant’s ability to carry out normal day to day activities?
- Is the effect substantial?
- Is the effect long term?
If there is any doubt about whether the condition amounts to a disability then a medical report should be commissioned asking the above questions.
As the Gutierrez case shows if an employee’s condition does satisfy the above test then great caution should be exercised when making employment related decisions concerning the individual.
For additional information regarding disability discrimination please contact Richard Green, Partner on 01905 721600.