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Guidance to help those dealing with a cancer diagnosis in the workplace

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According to Cancer Research UK, there were around 357,000 new cases of cancer in the UK in 2014 - that’s 980 cases diagnosed every day*. While most people know that cancer affects many people, fewer might know that cancer is treated as a disability under the Equality Act 2010 (the Act). Those with cancer are therefore protected from anything that might amount to disability discrimination under the Act.

What does this mean for employers and employees?

Key issues

  • A person who is diagnosed with cancer is classed as disabled from the moment of diagnosis: there is then no need for the individual to satisfy the statutory test for disability under the Act.
  • A diagnosis can be either provisional or actual for the Act to apply. However, a person who has a genetic disposition to cancer is not disabled for the purposes of the Act.
  • Living with cancer can make it hard for an employee to carry out his/her duties at work – even after they are well enough to return to work: they need support.
  • Cancer affects not only the person with cancer but also those who are living with or caring for the affected person. The Act also covers conduct (including discrimination and harassment) that affects those associated with the cancer sufferer.
  • Protection under the Act continues after the sufferer recovers.
  • An employer has a duty to make reasonable adjustments to allow for the person’s disability. Such adjustments might include steps to avoid substantial disadvantages that the employee could suffer as a result of workplace policies (as compared with a non-disabled person), or, adjustments to the physical features of the workplace. Each case must be considered separately as the disease can affect people in different ways. Options can include flexible working, lighter or different shifts, more breaks, homeworking and time to attend medical appointments.

Issues for Employees

Cancer is a serious and potentially life threatening disease. It affects those diagnosed in many ways – both physically and emotionally. It can also have a significant effect financially.

It is important to have an understanding employer who understands the challenges an employee with cancer may face. If the employer – or those within the employer’s organisation prove less than supportive, their behaviour can amount to discrimination.

If you are affected by cancer, consider the following:

  • in order to obtain the protection of the Act, it is important to tell your employer of your diagnosis. If the employer does not know, it will not be able to make any reasonable adjustments to the workplace to allow for your illness. Further, being ignorant of your diagnosis, your employer cannot be held legally responsible for not doing making the appropriate adjustments;
  • if you want your condition to remain confidential from your colleagues, specifically give that instruction to your employer;
  • your employer will need to see medical information about your condition in order to make reasonable adjustments to your workplace; and
  • discussing your condition and your ability (or inability) to work with your employer will help to smooth your treatment and your recovery.

Issues for Employers

As an employer, there is a good chance that one or more of your employees will face cancer at some point. Here are some ways that you, as an employer can support a cancer sufferer:

  • respecting the sufferer’s wishes to keep the diagnosis private and not tell colleagues;
  • ensuring the confidential information relating to the cancer is kept confidential from those colleagues;
  • understanding the nature of the condition and its effect – as well as the effects of any treatment – on the employee, and ensuring appropriate support is given;
  • obtaining medical advice to ensure the most appropriate support is given whether the employee is incapacitated or able to do some work;
  • undertaking regular reviews to take account of the fact that the employee’s needs may change, meeting the employee and finding out first-hand how they feel as well as seeking medical advice;
  • following the medical advice (which is crucial): do not make any assumptions about the individual’s wants or needs; and
  • not making the employee feel guilty after their return to work.

If an employee has not told you their of their cancer diagnosis, you will not be held responsible for not having made any reasonable adjustments to the workplace: you will be able to rely on what is known as the “ignorance defence”.

More support

Further information, training, guidance and support are provided by Macmillan Cancer Support. Click here to access the website: www.macmillan.org.uk.

Contact

For more information about employment rights following a diagnosis of cancer, contact Susan Mayall on 0161 684 6948 or make an enquiry.

Source *Cancer Research UK

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.

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