The former Newcastle United player, Jonas Gutierrez, was recently said to be pursuing a claim for disability discrimination against the Tyneside club. This came in the wake of the much publicised case involving Eva Carneiro, the former Chelsea doctor, bringing claims for constructive dismissal and sex discrimination against the west London club. Yet Gutierrez’s case in particular raised an interesting point – why is it that employment cases are rare in top level English football? In the context of a profession where manager sackings and contractual disputes seem to be commonplace, this might seem odd. This article will look at some of the recent examples of employment disputes in top level football, with a particular focus on Gutierrez’s discrimination case, will put forward some of the possible factors as to why such cases are rare, and will consider what read-across points there are for the financial services industry.

Discrimination Claims in Football

The starting point is that footballers, managers, and backroom staff will almost certainly be employees of their respective clubs. The fact that top flight players and managers alike are often paid significant amounts can sometimes detract from the fact that, as employees, they are afforded the same legal protections as any other employee. This includes protection from unfair dismissal, discrimination, and wrongful dismissal. When such claims are pursued, given the rarity of them in the football context, it tends to attract media attention.

Gutierrez was rumoured to be pursuing a claim for disability discrimination against Newcastle United in the early part of October 2015. Gutierrez reportedly planned to sue his former club under the Equality Act 2010 (the “Act”) which covers protection against discrimination, for at least £2m. Gutierrez had battled back from a year long fight with testicular cancer to score the goal that kept Newcastle in the Premier League last season. However, the club chose not to offer him a new contract in the summer. Gutierrez is rumoured to be arguing that this decision, in conjunction with the way he was treated during his illness, amounts to a discriminatory act.

Under the Act, it is unlawful for an employer to discriminate against an employee in respect of certain protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

In Gutierrez’s case, it would therefore be directly discriminatory for Newcastle to treat him less favourably than other players directly because of his cancer (which can be classified as a disability under the Act); and/or to treat Gutierrez unfavourably because of something arising in consequence of his cancer. Employers also have a duty to make reasonable adjustments to help disabled employees and where the duty does arise, the employer must effectively treat the disabled person in such a way as to reduce or remove that individual’s disadvantage which arises as a consequence of their disability.

Gutierrez would ultimately have to show that Newcastle discriminated against him by treating him unfavourably because of something arising in consequence of his disability. However, if the club could show that their treatment of Gutierrez was a proportionate means of achieving a legitimate aim then the claim would fail. Furthermore, Newcastle will likely point to the fact that another player, Ryan Taylor, did not have his contract renewed as well. Taylor did not have a disability under the Act and therefore acts as a comparator: it might be hard for Gutierrez to say he was treated unfavourably because of his disability when someone else without a disability was treated in the same way. However, this would only deal with the issue of discrimination on the termination of Gutierrez’s contract; not enough facts are known as to what arguments there may be in respect of any discriminatory acts committed whilst at the club.

Some may find it curious that legal redress is an avenue open to Gutierrez, after all Newcastle released him at the end of his contract which is a perfectly normal occurrence in football. The legal position under sections 95 and 136 of the Employment Rights Act 1996 is that the expiry of a fixed term contract (under which footballers traditionally operate), without a renewal under the same contract, will be deemed a dismissal and will engage the same employment protection rights as for a regular permanent employment contract. Football clubs would therefore technically have to ensure that the dismissal – or the decision not to renew a player’s contract – falls under one of the potentially fair reasons to dismiss: capability, conduct, redundancy, contravention of a statutory obligation, or some other substantial reason. Failure to do so could result in claims for unfair dismissal.

Eva Carneiro, the former Chelsea team doctor, sought to bring claims for constructive dismissal and sex discrimination against Chelsea and Jose Mourinho. This was prompted by her demotion from the match day bench combined with the removal of her first team duties, as well as by comments made to her by Mr Mourinho. Indeed Mourinho has rumoured to have been named personally as a respondent to the proceedings, a decision which could generate adverse media attention for Chelsea and which will likely raise the stakes of the litigation and increase Carneiro’s bargaining position for a higher settlement. However, something that has of yet remained under the radar of much media commentary on the case is that Jon Fearn, the male Chelsea physiotherapist, was also subjected to the same demotion and to Mourinho’s comments. The fact that there is a male comparator who was subjected to the same treatment will make the sex discrimination case harder for Carneiro to win.

Another Newcastle United player, Papiss Cisse, was also in a brief but memorable dispute with the club after refusing to wear the logo of club sponsors Wonga on religious grounds. To many Muslims, money-lending for profit is a sin. His case concerned a possible claim for indirect discrimination since Newcastle applied a provision, criteria or practice (wearing the Wonga logo) to all employees that disadvantaged a particular group, thereby indirectly discriminating against them. The matter was not pursued by Cisse, possibly partly on account of him being photographed in a casino not long after the dispute which appeared to undermine his position somewhat!

Discrimination claims like those mentioned above (not that Cisse’s case turned into a legal dispute) attract media attention partly because they deal with emotive issues but also because, unlike many employment claims such as unfair dismissal, the compensatory award is uncapped and therefore the figures being claimed can be substantial, and consequently newsworthy.

Reputation Concerns

However, bringing claims will not always be about the financial compensation for claimants and often there will be occasions where people will simply want their day in court. In the football context, the Dundee United youth coach Stevie Campbell recently resigned and is pursuing claims for unfair dismissal and whistleblowing. He openly said that he is “looking forward to the opportunity to clear my name in an open forum where Dundee United supporters will be able to form their own views on the rights and wrongs of what has happened.” Clubs, just like any other employer, would be wary of the potential for ‘dirty laundry’ to be aired in public. It is easy to see why, in these circumstances, clubs will seek to settle matters before they get to court. The case of Lucy Ward, the former Leeds United Ladies player who was also involved with its academy, and who brought a claim for unfair dismissal against the club, provides a useful example of this. With no previous record of any disciplinary procedures, Ward was suspended for an act of ‘gross misconduct’ in May. Ms Ward had apparently spent too long working as a BBC analyst at last summer’s Women’s World Cup in Canada. However, the employment tribunal’s court papers suggest that she had gained the permission of her line manager, and that her BBC engagement was used as an excuse to dismiss her. The evidence was that she was sacked because she happened to be the long-term partner of the former manager Neil Redfearn, who was dismissed on the same day. The extent to which this sort of disclosure damages a club – or indeed bothers them – is unknown but the likelihood is that clubs would rather avoid those situations. Indeed the owner of Leeds United, Massimo Cellino (a man who is no stranger to legal disputes), offers insight as to why clubs often seek to settle matters before court proceedings get under way: “a bad settlement is better than a court settlement” is reportedly one of his favourite sayings. The fact is that a court forum will often be open to the public, and provides a chance for the internal dealings of clubs to be made public, often causing reputation damage as well as unwanted media attention. In this respect, football clubs are again just like many employers who will seek to settle matters expeditiously before they get to court and in the cases of Gutierrez and Carneiro, it would not be a surprising outcome if they followed suit.

On the other hand, a public dispute can reflect badly on the players, managers and or staff as well. The Leeds United former technical director Gwyn Williams was unsuccessful in claiming that he was unfairly dismissed for gross misconduct in July 2013 after sending ‘obscene’ images by email. He lodged a High Court claim in February 2015 for damages of up to £250,000 in compensation for breach of contract. Mr Williams had argued that forwarding the emails to three friends was not sufficiently serious to amount to a repudiatory breach of contract but the High Court rejected this argument. The extent to which this might have damaged Mr Williams’ reputation in the game is unknown, but in the case of players bringing claims against clubs they may be wary of being viewed as a troublemaker, even if their claims are ultimately successful. The consequence of this is that very few claims get brought before a tribunal or court.

Is it Worth it?

It is well documented how well remunerated top level players are. The possible adverse ramifications of bringing claims against their clubs, coupled with the fact that many employment claims are capped at what will likely be a relatively small amount to many players, means that claims in an employment tribunal are few and far between. It is no surprise, therefore, that the majority of cases referred to above deal with backroom staff rather than players.

That is not to say that there won’t be claims out there. An additional factor in the scarcity of claims in top level football is likely to be that there is simply no culture of players looking to assert their legal rights – and possibly that they/agents/advisors are just unaware of them. Whilst their remuneration often makes it seem like footballers operate in a different world altogether from the rest of us, they are just like you and me in respect of the legal protections they are afforded as employees.

Parallels?

In many respects, there are parallels to be drawn between those working in the financial services industry and those in the world of football. Leading banks and financial institutions would in many instances enter early negotiations in the event of a dispute with a senior employee in order to avoid the situation escalating. In the scheme of things, the potential pay-out under a settlement agreement (formerly called a compromise agreement) is often a preferable route than that of attracting adverse attention through prolonged tribunal or court proceedings, and their associated costs. The parallels go further: for many in financial services, as in football, the damages available from a ‘capped’ award may be relatively small compared with their earnings, although those available from an uncapped award in the cases of discrimination or whistleblowing can be substantial.

In the event that any individual is faced with employment issues, be it possible dismissal, redundancy, or perhaps discrimination, the sensible place to start is seeking out advice at an early stage so that an experienced practitioner can assess their legal rights, establish the possible options available, and to put in place the most appropriate strategy.

An Alberta employer has been sentenced to a fine of $80,000 plus the 15% victim fine surcharge following a workplace incident which occurred in 2011 at its distribution center.

A worker was injured while bending down under a conveyor to plug in a portable weigh scale. As she bent down, she felt herself being propelled violently backward. A subsequent investigation determined that her hair had become entangled in the drive shaft under the conveyor. She sustained numerous injuries, losing part of her thumb and part of her hair.

At trial, the employer was convicted of two offences under the occupational health and safety legislation, the court finding that the employer had failed to establish the defence of due diligence. In its sentencing decision, the court considered the employer’s safety policies and its corporate commitment towards safety to be mitigating factors. However, the court noted that the employer had been convicted for failing to use all reasonable measures to ensure the safety of its workers who worked near the conveyor. Company officials had failed to recognize, over a four year period, that a large portion of the conveyor was unguarded. The court was also critical of the training given to workers about the dangers of conveyors. Thus, while the employer was concerned about safety, the court found that it had not been vigilant enough.

The court also considered the impact of the incident on the worker as increasing the gravity of the offence. However, the lack of a guilty plea was not treated as an aggravating circumstance. The court also inferred that the employer was remorseful based on the steps it had taken following the incident, and considered that a mitigating circumstance.

The court reviewed the sentencing jurisprudence but considered this case to be unique in relation to the fact that the employer’s oversight took place over four years and caused considerable pain and disfiguring injuries. Thus, a fine of $80,000 was considered appropriate.

This case serves as yet another example of the difficulty of successfully establishing a due diligence defence. It is also a reminder to employers to ensure they perform appropriate and thorough safety inspections and consider all aspects of the workplace that could potentially pose a danger to workers. This decision also demonstrates that while sentencing precedents are useful, the court is not bound by them and must consider all of the circumstances of the case in determining an appropriate sentence.

R. v. Value Drug Mart Associates Ltd., 2014 ABPC 255 (CanLII)

For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com

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In December 2012, in the case Société Générale, London Branch v Geys, the Supreme Court concluded that, if an employer dismisses an employee with immediate effect in breach of the employment contract, the employee can choose whether to accept the breach as bringing the contract to an end. If the employee does not accept the breach, the contract will continue until the end of the contractual notice period.

The Court of Appeal has now confirmed in Sunrise Brokers LLP v Rodgers that the reverse is also true, so that if an employee resigns with immediate effect, in breach of their contract, the employer can choose whether or not to accept the breach as bringing the employment contract to an end. This decision, and the steps the employer takes after an employee’s breach, can have significant implications.

What happened in this case?

Michael Rodgers was employed as a derivatives broker by Sunrise Brokers LLP. The new employment contract he signed in 2011 provided that the contract could not be terminated by him before September 2014, and then he could terminate his employment on 12 months’ written notice. The contract included extensive post-termination restrictions, preventing him from competing with Sunrise and/ or soliciting customers for 6 months, but provided that if he was placed on garden leave, these restrictions would be reduced accordingly.

On 27 March 2014, Mr Rodgers told Sunrise that he was leaving immediately and refused requests to return to work. Sunrise made clear to Mr Rodgers that they did not accept his resignation and that he therefore remained bound by his contractual restrictions, although Sunrise later offered to accept his contract coming to an end on 16 October 2014. Sunrise did not place him on garden leave, and instead stopped his salary and bonus payments because he refused to return to work.

A month later, he informed Sunrise that he would be relocating to the US to work for EOX Holdings LLC, a competitor. Sunrise applied to the High Court for a declaration that Mr Rodgers was bound by his contract terms and an injunction preventing him from working for another employer.

What the Courts said

The High Court held that Sunrise’s refusal to pay Mr Rodgers’ salary did not amount to a breach of contract because Sunrise genuinely wanted Mr Rodgers to come back to work and he refused to do so. In view of Mr Rodgers’ financial circumstances, the judge did not accept that an injunction would have the effect of compelling Mr Rodgers to work for Sunrise or otherwise he would starve, and Sunrise was granted an injunction holding him to his employment until 16 October. As he was refusing to work, he was not entitled to be paid. His post-termination restrictions were held to apply for only four months (not the six months provided under the employment contract) after 16 October 2014.

Mr Rodgers appealed, but the Court of Appeal upheld this decision and enforced the injunction.

What this means for employers

This decision will of course be welcomed by employers. If an employee refuses to turn up for work after giving notice, the employer can stop paying them without breaching their own contractual obligations. Employers are not under an obligation to place the employee on garden leave, which would entitle the employee to be paid.

This case illustrates how important it is, if an employee’s resignation may be in breach of contract, to carefully consider how to respond and, if you decide to hold the employee to the contract, to avoid taking any steps that could be treated as accepting the employee’s breach of contract so that post-termination provisions remain in force.

On November 4, 2014, Massachusetts voters passed a ballot measure to provide earned paid sick leave to employees.  Effective July 1, 2015, employers with more than 10 employees will be required to allow all employees who work in Massachusetts to accrue and use up to 40 hours of paid sick leave per calendar year.  Employers with 10 or fewer employees will be required to allow their employees to earn and use up to 40 hours of unpaid sick leave.

However, employers that already provide their employees paid time off under a paid time off, vacation, or other paid leave policy are not required to provide any additional paid sick time under this law, provided they permit employees to use at least 40 hours per calendar year for the purposes covered under the law. Furthermore, this law does not override any employer’s obligations under any collective bargaining agreement, contract, or benefit plan with more generous provisions.

Employees can use earned sick leave, whether paid or unpaid, to:

• care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse;
• attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or
• address the effects of domestic violence on the employee or the employee’s dependent child.

How Is The Time Earned?

Employees will earn a minimum of one hour of sick leave for every 30 hours worked starting on July 1, 2015 or from their date of hire (whichever is later), up to a maximum of 40 hours per calendar year. Employees are not entitled to use their accrued earned sick time for the first 90 days of their employment.

As with the Family and Medical Leave Act, employees may use their earned sick leave intermittently, either in hourly increments or the smallest increment in the payroll system for absences.

Employees are permitted to carry-over up to 40 hours of earned but unused sick leave into the next calendar year.  Unlike vacation and other paid time off, employers are not required to pay employees for accrued but unused sick leave upon separation from employment.

You may require medical certification of the need for earned sick leave if your employee is absent for more than 24 consecutively scheduled work hours, but you may not delay or deny sick leave because you have not received medical certification.  When the need for leave is foreseeable, employees must make a good faith effort to provide advance notice of their leave.

What Are Employees’ Rights?

Employers are prohibited from interfering with an employee’s right to earned sick leave or retaliating against an employee who requests earned sick leave.  Employers are also prohibited from retaliating against an employee based on the employee’s support of another employee’s exercise of such rights.  In addition to enforcement by the Massachusetts Attorney General, employees who believe their rights under this act have been violated will have a private right of action to sue their employers.  The Attorney General is required to create a notice poster informing employees of their rights and responsibilities under this law. The Attorney General will also prescribe all employers’ obligations to make, keep, and preserve records concerning earned sick time.

What Should A Massachusetts Employer Do?

In anticipation of these changes, Massachusetts employers should review their paid time off, vacation, or other paid leave policies to determine whether they will have to implement earned sick leave for any of their employees. You should also inform your managers and supervisors the company’s new policy changes and advise them of their added responsibilities.

Also consider revising your employee handbooks to account for these changes and be on the look-out for the poster issued by the Massachusetts Attorney General.