One in three people will develop cancer. With treatment, many can be cured or can control the cancer for months or years.
As the treatments for cancer improve, the need for employers to consider their responsibilities to employees in this situation increases. This is even more important for employers now that cancer is classed as a disability under the Disability Discrimination Act 2005 (DDA).
Cancer can physically and emotionally affect people in many different ways. Therefore, employers need to consider a variety of means by which they can accommodate an employee’s needs. An employer who is well prepared to offer care and assistance will certainly benefit the employee.
Cancer at work
Despite the fact that cancer is now classed as a disability, the Disability Rights Commission (DRC) recently stated that 82% of callers with cancer complained of unfair treatment at work following diagnosis. They reported that their employers were failing to make reasonable adjustments.
The DRC has handled cases that include a woman who was dismissed from her job at a major retailer because she was not able to give a return-to-work date after her radiotherapy had finished.
In another instance, a woman who had a mastectomy was informed by her employer that her time off due to a disability or illness was considered a disciplinary matter.
It therefore seems that employers are either not aware of employees’ rights, or are not sufficiently prepared to deal with them. This prompted four women to set up the Working with Cancer group, to investigate whether there was sufficient guidance for employers in this situation.
The information gap
After the Chartered Institute of Personnel and Development (CIPD) surveyed its membership in 2006, it concluded that there was a real information gap surrounding cancer and set out to address this problem.
The publication Cancer and Working: Guidelines for Employers, HR and Line Managers was produced as a result of a collaboration between Cancerbackup, the CIPD and Working with Cancer, and sets out basic guidelines for employers on establishing policies, including:
- Respecting the employee’s dignity and privacy
- Maintaining the employee’s involvement and engagement
- Providing the employee with information and support
- Ensuring that the employee does not suffer financially.
The guidelines are not legally binding but they do provide a useful starting point. Every cancer diagnosis is different and each affected employee will want to deal with it in their own way.
The following provides a guide to the steps an employer could consider taking when an employee informs the company of a cancer diagnosis, both to help the employer comply with its duties under the DDA and to make the employee’s life at work as manageable as possible:
- Meet the employee to discuss how they are dealing with the diagnosis who at work the employee would like to know about it the impact the treatment may have on the employee’s ability to work what the company can offer in terms of flexible working and what reasonable adjustments could be made to assist the employee.
- Follow-up steps to the meeting identify who the employee should contact if their situation changes or the employee wants to discuss it further and investigate other external sources of help that the employee could consider contacting, such as Access to Work, a scheme administered by the Department for Work and Pensions which provides practical advice to employees and financial support to employers in making reasonable adjustments.
- Reasonable adjustments, which should only be made after full consultation with the employee, could include: planning a reduced workload arranging a change in type of work working from home adjusting performance targets to a more realistic level keeping in touch with the employee if they have time off work (subject to the wishes of the employee) and scheduling regular consultations with the employee.
- Employees should be made aware of the company’s grievance procedure, should they be concerned that they are not receiving the correct treatment.
The employer should remember that the physical and emotional effects of the cancer and cancer treatment can vary over time and it is therefore important to reconsider these elements as appropriate.
Cancer as a disability
The Disability Discrimination Act (DDA) prevents employers from discriminating against disabled people and places a positive duty on employers to make reasonable adjustments.
Before 5 December 2005, for cancer to be classed as a disability a person had to demonstrate that the illness had an effect on their ability to carry out normal day-to-day activities that was likely to produce a “substantial adverse effect” in the future.
However, since 5 December 2005 the DDA has been amended so anyone with cancer is protected against unfair treatment in the workplace, from the moment of diagnosis.
The DDA also covers workers who have been diagnosed with cancer in the past, even if they haven’t had treatment or symptoms for years. Employers no longer have the difficulty of evaluating an affected employee’s symptoms and the impact on that individual in any given case, to establish whether the employee is “disabled”.
Steps to take on cancer diagnosis
- Meet the employee to discuss how they would like to take things forward.
- Arrange a follow-up meeting if the employee would like this.
- Consider what reasonable adjustments can be made.
- Provide the employee with information that may be helpful.
Steps to take now
- Consider how you would deal with an employee with a cancer diagnosis and whether it is appropriate to implement a policy dealing specifically with this.
- Ensure that employees are aware of the possibility of raising grievances both informally and formally.
- Ensure employees are aware of the sick pay policies and any medical insurance provided by the employer.
Cathy Connor is a solicitor at City law firm Macfarlanes
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