Protecting employees with cancer

The sad reality is that most of us are married to, related to, know of, or are someone who has or has had cancer. In the UK 100,000 people of working age (between 16 and 64) are diagnosed with cancer each year and there are currently over 750,000 people of working age living with cancer.

The good news is that, thanks to research and medical advancements, the UK’s cancer survival rate has doubled over the last 40 years and around half of patients now survive the disease for more than ten years. However, although many survivors and those who are still undergoing treatment want to return to work, research shows that they are struggling to do so as they do not have the right support from their employers. According to the charity Macmillan, almost one-fifth of people diagnosed with cancer face discrimination from employers or colleagues on their return to work and 14 per cent give up work or are made redundant as a result.

UK law deems those diagnosed with cancer as disabled and they are protected from discrimination in the workplace by the Equality Act 2010. Those who have previously suffered from cancer are also protected. The Disability Discrimination Act 1995 and its extension, the Disability Discrimination Order 2006, protect workers in Northern Ireland. This legislation doesn’t just protect employees. It also protects job applicants and people who are self-employed.

One of the key legal obligations placed on employers is the duty to make reasonable adjustments for those with disabilities. For example, if an employee is suffering from fatigue as a result of cancer, an employer should adjust their working hours to help them cope. Employers should also allow time off work to enable employees to undergo cancer treatment. Any changes should be flexible since illness is unpredictable and every individual experiences it differently. Employers should have regular planned meetings with their employee to discuss their particular symptoms and how best they can support them. Employers should also seek medical advice, for example from their occupational health expert and the employee’s GP, as to what adjustments should be made to suit that particular individual’s circumstances.

Employers should be aware that it is unlawful discrimination to treat a cancer sufferer differently to other employees or unfavourably because of something connected to their cancer. This can include giving an employee a disciplinary warning or selecting them for redundancy because they have had a lot of time off sick due to undergoing cancer treatment or giving them an unfavourable appraisal or performance review because, as a result of tiredness, they haven’t met targets or objectives.

Even employers with potentially good intentions can end up discriminating. Employers should never suggest, for example, that it would be better if an employee affected by cancer retired or stopped working. Equally, employers should avoid demoting an employee diagnosed with cancer to a lower-paid or less demanding job for a reason related to their cancer. Assumptions that an employee with cancer should cease work or take on less onerous work could constitute unfavourable treatment and, potentially, unlawful disability discrimination.

Employers will also be held responsible for the behaviours of other employees towards an employee diagnosed with cancer. From the outset employers should ask the employee what information in relation to their diagnosis they would want shared with colleagues. If the employee is adamant that the illness is to be kept secret, employers must respect this or risk breaching the Data Protection Act and the right to privacy under the Human Rights Act. Irrespective of whether or not people in the workplace are informed about the employee’s illness, it is contrary to discrimination laws to harass an employee because of their cancer. This can happen when an employer or colleague bullies, intimidates, or insults them, or makes them feel uncomfortable because of something connected with their cancer. For example, being teased about wearing a wig following hair loss as a result of cancer treatment, or being laughed at or whispered about by colleagues because of any reason related to cancer is likely to constitute harassment. Employers should ensure that disability discrimination and harassment are covered in diversity training provided to all employees.

Research has found that many people living with cancer feel that work is important to them, as a job can restore normality, stability, social contact, and income. Employers should ensure that their employees can concentrate on fighting their illness without, at the same time, having to worry about fighting to keep their jobs.

Tilly Harries is a barrister and senior solicitor in the employment legal team at PwC

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