Legal Q&A: Breast cancer

A solicitor who was diagnosed with breast cancer while working at Scotland Yard is reported to be claiming she was unfairly dismissed and discriminated against because of her illness.


Susan Garnett started working for the Metropolitan Police in September 2005, and claims to have been offered a fixed-term contract for three years. However, six months into the project, she informed the Met that she had breast cancer. At that point, Garnett claims, she was told that the Met had a policy not to offer fixed-term contracts to people suffering from serious conditions.


She has now reportedly brought claims against the Met for unfair dismissal and disability discrimination at an employment tribunal. This case brings the Disability Discrimination Act 1995 (DDA) sharply into focus.


Q Is breast cancer a disability under the DDA?


A Yes. Blindness, severe disfigurement, cancer, HIV and multiple sclerosis are all deemed to be disabilities, and sufferers automatically benefit from the protection afforded by the Act.


Q What rights does an employee with a serious illness have?


A All employees (with one year or more continuous service) have the right not to be unfairly dismissed. If an employee is considered ‘disabled’ for the purposes of the DDA, they will have additional protection. There is no qualifying service requirement, and no cap on compensation.


The Act prohibits five types of discrimination:




  • Discrimination on the grounds of a person’s disability


  • Discrimination for a reason related to a person’s disability


  • Failure to make reasonable adjustments


  • Harassment


  • Victimisation.

Garnett’s claim is that she was discriminated against on the grounds of her disability. She appears to be claiming the Met made an assumption about what she could or could not do once it had been informed of her illness.


In the case of Tudor v Spen Corner Veterinary Centre & Tschimmel, an employee was dismissed after suffering a stroke and going blind. The tribunal found that her employer had made assumptions about her ability to continue doing her job, and did not meet her or seek any medical evidence before dismissing her. This appeared to be a clear case of direct discrimination, which the employer was unable to rebut with any evidence to the contrary.


Q Does an employer have to take any steps to ‘allow for’ an employee with breast cancer?


A Unlike other forms of anti-discrimination legislation, the DDA imposes obligations on employers to treat disabled persons more favourably in certain circumstances. The duty to make reasonable adjustments could include:




  • Reducing an employee’s hours to allow time for treatment or rehabilitation


  • Agreeing to part-time or flexible working


  • Considering offering an employee an alternative role if their current role is now impossible


  • Making adjustments to premises


  • Allocating some tasks to another employee.

With breast cancer, it may be that an employee requires time off for treatment such as chemotherapy, or to work reduced hours for a period of time. However, depending on the stage the illness is at, no adjustments may need to be sought. The key is to consult the employee and, if necessary, medical advisers.


Q What if the illness becomes terminal?


A They are still entitled to remain in employment for as long as they can continue working (with reasonable adjustments where necessary). However, if their condition deteriorates, or they require care and treatment to the extent that it is not possible for them to continue working even where reasonable adjustments have been made, employers should consider other options, which could include a period of sick leave, ill-health retirement, and/or applying for permanent health insurance, if these are available.


It is important to talk to the employee about their condition and to involve occupational health advisers and the employee’s own medical advisers if necessary.


Q Are we allowed to question people about their health before employing them?


A Employers can ask questions prior to hiring staff if they are relevant to the individual’s ability to do the job. An employer may also need the information to assess eligibility for certain benefits such as life assurance and private medical cover. However, there is a danger that collecting such information at the recruitment stage could lead to discriminatory decisions being made. Therefore, questions concerning health should only be asked once an offer of employment has been made, at the same stage that references are usually checked.


By Claire Dawson, solicitor, Russell Jones & Walker





 

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