Employment Rights for Cancer Patients
The WHO reports that Cancer is the second leading cause of death globally, and is responsible for an estimated 9.6 million deaths in 2018. Globally, about 1 in 6 deaths is due to cancer. Sadly it is on the increase and most of us know a friend or relative who has been diagnosed with Cancer at some point in their lives.
Encouragingly research continues to make breakthroughs so that nowadays many recover and continue to work whilst having treatment.
During the period of diagnosis and treatment it is essential that employers are supportive and treat employees undergoing Cancer treatment within the law.
This is our brief guide for employers and employees on how to manage work whilst someone is undergoing Cancer treatment and beyond:
Support from your Employer
Employers should be supportive and understanding about the fact that an employee will be going through a very stressful time. As we will discuss below, Cancer is deemed to be disability under the Equality Act, so an employer will be under a legal duty to ensure that a worker with Cancer is not treated less favourably than others and to make reasonable adjustments wherever necessary.
Prior to undergoing Cancer Treatment
Before treatment, it’s will often be difficult to know just how the treatment may affect an individual and therefore it will normally be advisable to notify the employer so that they are aware that there may be a change to work patterns, such as working hours or attendance at short notice.
Communication during this time will be crucial so it is vital that employers and employees continue to discuss how treatment will be arranged and how it will affect the workplace; employers should give serious consideration to making any necessary changes to an employees duties or working hours to enable the employee to continue working throughout the treatment. Similarly if there are going to be changes to the workplace such as a restructure or redundancy it will be crucial that the employee is kept informed of this and wherever possible is able to participate in any related consultation.
Some employers may not have had any experience of dealing with an employee with cancer before, so training and understanding the impact of an employee’s particular treatment will be vital. The more communication, the more both parties can try to manage the situation in a sensitive and supportive manner. This works for the business too, understanding how the employee is likely to be affected means that proper planning can be organised to ensure that disruption to the business is kept to a minimum.
It is likely that an employee will need to take time off work for treatment and recuperation. This time off can be taken as:
- sickness absence;
- an agreed reduction in working hours or days per week (for example if the employee needs to attend a weekly hospital appointment);
- paid holiday;
- a combination of the above.
It’s important that the employee receives information from their HR manager or line manager about the company’s sickness policy and how much paid and unpaid leave they will be entitled to.
Wherever possible an agreed attendance plan should be drawn up so that both parties know, as much as possible, what to expect. Uncertainty is highly inadvisable in these circumstances as the employee will be already undergoing considerable stress.
Under the Equality Act an employer must by law make reasonable adjustments to ensure that the employee is safe at work, and is supported to continue working if they wish to do so. What constitutes ‘reasonable adjustments’ will largely depend upon the type of workplace and the type of work the employee undertakes.
Some common adjustments are:
Reducing or varying working hours;
Allowing employees to work from home;
Allowing employees to be consulted on any changes in the workplace at home or another venue;
Allowing employees to have more frequent or longer rest breaks;
Allowing employees to attend appointments, relaxation classes or support groups
Altering the working environment to make their work less tiring or stressful – for example locating the employee near to equipment, or providing a trolley or other lifting equipment to reduce the need to carry heavier items or allowing an employee to undertake more sedentary work.
Consultation with the employee will allow them to provide their own ideas and come up with a workable solution to their needs.
Equality Act 2010
Under the Equality Act 2010 (the Act) it is unlawful for an employer to discriminate against a person because of their disability. Everyone with cancer is deemed to be disabled under the Equality Act (due to this being a long-term illness) and so is automatically protected by the Act irrespective of their particular symtoms.
The Equality Act also covers workers who were disabled in the past, even if they are no longer disabled. A worker who has had cancer in the past, but is currently in remission or is now completely cured, will still be covered by the Equality Act even though they may no longer be receiving treatment or suffering any obvious symptoms.
Therefore, an employer cannot discriminate against a person for a reason relating to them previously having had cancer.
Examples of discrimination on the grounds of Cancer are:
- Failing to notify a worker of changes to the workplace, restructures, redundancies or any other change which would affect a worker’s job
- Not making reasonable changes so that a worker can carry on doing their job
- Giving a worker a disciplinary warning based on sick leave or attendance without making allowances for your cancer
- Suggesting or alluding to the fact it might be better for the worker to give up working
- Dismissing a worker for a reason which relates to their illness
- Demoting or overlooking a worker for promotion
- Selecting a worker for redundancy
- Issuing a poor performance rating for reasons relating to a worker’s cancer
- Failing to allow a worker time off for medical or other cancer related appointments
Post Cancer Treatment
Once a worker’s treatment has ended a worker still has the right to continue to attend their GP or hospital or other medical advisers for check-up appointments intermittently for a few years after your treatment. Most cancer patients will require follow on check ups for years after they get the all clear. An employee is still entitled to take time off work for these appointments and continue to be covered by the Equality Act.
Cancer survivors often possess an incredible strength of character and ability to deal with stressful situations which would make them an asset to any employer. These characteristics bear remembering when interviewing or considering someone for a role within an employer.
Failure to hire someone for a role on the basis of them either currently or previously having had cancer is discriminatory, in the same way as not hiring someone because they are gay or from an ethnic minority group.
Privacy and Confidentiality
It is entirely up to an individual worker whether they want their employer to know if they have cancer. However, if a worker does disclose this fact it is essential that only those who need to know this information are informed about it, usually senior HR and the worker’s senior line manager. Other than this it is for the worker themselves to disclose their cancer if they wish. A worker may be advised to disclose their cancer so that their employer is put on notice of their condition and therefore their legal obligations as set out above.
Union representatives and HR managers should also strictly observe privacy and not pass on any confidential information about a worker.
Occupational health staff are bound by the patient confidentiality code of all health professionals and so will not tell anyone about a workers illness without their express permission.
Whilst many people don’t want “a fuss” or sympathy, a worker may benefit from the support of their colleagues. This may also prevent awkward questions later on if they have to take a period of absence, or for example lose their hair due to chemotherapy.
However, if a worker does feel they wish to discuss their illness with colleagues personally, their employer or HR manager may be able help a worker to do this for them in an agreed sensitive way, such as in a staff meeting or via staff bulletin emails, at their request.
The successful management and support of a worker with cancer will pay divedends for the workplace, it will foster loyalty, morale and send a clear message to all workers that they are valued and supported.
We might all do well to remember that “there but for the grace of God” we all need support at various times in our lives.
If you feel that you are being discriminated against at work due to currently or previously having cancer, you can do something about it. The steps you can take are:
- Raise the matter informally with your line manager or HR;
- Raise a grievance with your line manager or HR;
- Try and settle your potential claim with ACAS;
- Issue a claim in the Employment Tribunals.
If you think you have been discriminated against, you should complain as soon as possible after the discriminatory act takes place, or after the period of discrimination ends. If you wish to take your complaint to the Employment Tribunals, you have three months from the date of the discriminatory act, or end of the period of discrimination to do so.
If you would like a confidential chat about any of these issues call Zoe on 0203 8587965
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.