Each year, around 100,000 people of working age (16-65) in England are diagnosed with cancer.[1] When an employee is diagnosed with cancer, employers are often concerned with how best to support their changing needs in the workplace.
Our employment team has set out some advice below to assist employers with navigating this sensitive area, focusing on how to try and minimise the risk of a claim for disability discrimination.
Understanding the law
The Equality Act 2010 (the Act) is in place to help protect employees who have cancer under disability discrimination legislation. Cancer is automatically considered to be a disability under the Act. Disability discrimination can occur where an individual is treated differently or less favourably because they have a disability.
The protection afforded by the equality legislation applies throughout the employment relationship, from recruitment through to termination, and as well as protecting current and former employees it also protects applicants, contract workers, office-holders, secondees, and some self-employed individuals who perform work personally.
There are six main types of disability discrimination:
- Direct discrimination – treating someone less favourably because of a disability
- Indirect discrimination – implementing policies, procedures or criterion which are not intended to treat disabled employees less favourably but which in practice do so compared with employees who are not disabled
- Failure to make reasonable adjustments – see below
- Discrimination arising from a disability – treating a disabled person unfavourably because of something arising from their disability
- Harassment – when conduct towards a disabled person is unwanted and has the purpose or effect of creating an intimidating, hostile, humiliating, degrading or offensive environment for them
- Victimisation – when an individual is subjected to a detriment because they done something, intend to do something or are suspected of alleging that the Act has been breached, have brought proceedings under the Act, given evidence or information in connection with proceedings, or done anything else in connection with the Act.
If an individual is successful in a claim of discrimination against their employer, the employer could be liable for unlimited compensation in the employment tribunal.
Consider the duty to make reasonable adjustments
Employers have a legal duty to make reasonable adjustments to ensure that employees with disabilities are not substantially disadvantaged when doing their jobs because of their disability. A substantial disadvantage may occur due to a provision, criterion or practice in place, a physical feature in the workplace or from a failure to provide adapted equipment.
Reasonable adjustments can include making changes to an employee’s role, their working environment and hours, their equipment, or the way things are done. Some examples of reasonable adjustments which you may have to consider are:
- Agreeing to flexible working arrangements;
- Reducing or changing working hours;
- Agreeing to a phased return to work after treatment; or
- Providing parking near to your premises.
What is reasonable will depend on the circumstances, such as the structure of the company, the cost implications, and the impact any changes may have on the wider business. The duty will also only arise if the employer knows or ought to reasonably know that the employee is disabled and is likely to be substantially disadvantaged because of their disability.
Consider seeking advice from medical professionals
You may need to obtain a medical report of your employee’s condition from a health professional or occupational health expert, if you are unsure as to how best you can support the employee or they do not provide you with sufficient information. You will need the relevant employee’s agreement to do so, and this will involve telling them why you are seeking the report and who will see it. Whilst you can also seek information from an employee’s GP; it is likely to be limited.
The report will assist you with being able to make informed decisions and ascertaining whether any reasonable adjustments should be made for your employee at work or, where they have irregular attendance at work or long term absence, to get them back to work.
If an employee does not agree to a report, the employer will have to make decisions based on any other information available.
Ensure effective communication
Unfortunately, no case of cancer will be the same, and there is no single correct course of action to take when an employee is diagnosed. An individual’s needs and feeling are likely to change as their illness progresses, and they are likely to face a period of huge uncertainty while they await the results of treatment or their options.
It is important to establish and maintain clear lines of communication with the employee, to enable you to establish their individual needs and support their wellbeing. Providing a ‘safe’ environment for an employee to open up about their condition is likely to lead to a more harmonious experience for both parties.
You should ensure the employee is aware of any support options available, such as any employee assistance programme or other wellbeing support.
Effective communication does not end at the individual affected. It will also be helpful to ensure that the relevant line managers and HR staff are aware of the situation and equipped to deal with issues, including via training (bearing in mind that you will need to respect the individual’s wishes for their diagnosis to remain confidential).
Ensure your policies and procedures are up to date
A sickness policy can assist both parties by making it clear what notification and reporting obligations are expected and of the potential consequences of non-compliance. It could also ensure clarity regarding how time off for medical appointments is dealt with, and the rules surrounding pay and leave.
As this article is meant to give general advice it is important that you seek advice from your HR or legal team in each situation to help minimise the risk of a claim. If you need assistance with dealing with an employee with cancer, or with other long-term sickness queries, please get in touch with our team here.
[1] people-of-working-age-with-cancer_tcm9-282791.pdf (macmillan.org.uk)