Steps to take to avoid discriminating against cancer

Cancer sufferers get special treatment under the Equality Act 2010. Jackie Cuneen explains.

Many of us have been personally affected by cancer, whether we have had cancer, or know or care for someone with cancer. More than 100,000 people of working age (18-64) are diagnosed with cancer each year in the UK. More people are living with and working through cancer – some to get some normality back, but often for financial reasons. This figure does not take into account a growing, ageing population who are retiring later or workers who are carers or dependants.

The fact that an employee has cancer automatically triggers special rights and obligations under the Equality Act 2010. However, a report by Macmillan Cancer Support ref in May 2013 found that those with cancer who felt they had experienced discrimination at work had risen to 37%, from 23% in 2010.

According to Women at the Haven, a national breast cancer support charity where I hold workshops on cancer in the workplace, employers’ reactions to those returning to work after cancer is: “Once you’re back, you’re back.” There is much ignorance among employers, and indeed employees, as to their respective legal rights and obligations.

But, as Macmillan reports, there is a lack of understanding among employers about cancer and the effects of treatment on people returning to work. The return to work can be isolating, especially if someone has been off for a while and has lost confidence or contact with colleagues.

Damages in disability discrimination claims are uncapped. This is a potentially big issue for employers. However, it is not just a financial cost, but a human cost and a reputational cost to the business’s brand.

So how can you prevent discrimination arising? There is help and guidance available. Macmillan’s employer’s toolkit is one resource, but employers must be proactive.

Legal context

Employers generally understand the basics: compliance with the employment contract; providing a safe place of work; and not unfairly dismissing the employee because of ill health without a fair reason and process.

Many employers, however, do not understand their additional obligations to employees with cancer. Cancer is deemed a disability under the Equality Act. Employees have automatic protection from discrimination from day one of their diagnosis. This protection continues even if their cancer is in remission. No qualifying period of employment is required.

Employers must not discriminate against an employee with cancer unless there is objective justification for this behaviour. This covers every stage of the employment relationship – from recruitment, to the terms and conditions afforded during employment, to its termination. Both workers and job applicants are covered.

A key aspect is the employer’s duty to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage at work to prevent or minimise this. The Equality and Human Rights Commission (EHRC) code provides a non-exhaustive list of the types of adjustments that could be made to premises or working practices.

Below are five areas of employment and example scenarios where discrimination can arise.

quotemarks Employees have automatic protection from discrimination from day one of their diagnosis. This protection continues even if their cancer is in remission.”

Privacy

Your employee has just had a cancer diagnosis. His or her symptoms will be relatively invisible. He or she does not want anyone to know. He or she is concerned about people’s perception of him or her and the impact on her career. Macmillan’s research shows that 8% of cancer sufferers felt they had been passed over for promotion.

Employees have a right to privacy, but what about the employer’s rights? If you do not know, how can you support the employee and mitigate any business risk? Ignorance is not a defence. The EHRC code states that “an employer must do all they can reasonably be expected to do to find out if a worker has a disability”. Knowledge can also be imputed – for example, from visible signs or via informal/external social or media networks.

A balance must be achieved. Get it right, and it can have a positive impact, but get it wrong and a breakdown in trust can fuel discrimination. Create a safe environment where the employee has the confidence to have an open dialogue and agree a pragmatic approach as to how their situation is to be communicated and to whom. Specifics do not have to be shared, although much depends on the employee’s condition and role. It may be in the employee’s interest to inform their immediate team as colleagues may be more understanding – for example, when the employee arrives late or goes home early.

Put appropriate controls in place to keep medical correspondence confidential and secure. Too often, there are stories of confidential information going astray contrary to data protection law. Explain the employee’s rights under the Access to Medical Reports Act 1988.

quotemarks Paid time off for medical appointments or even complementary therapies could be reasonable, as could relaxing the often debilitating requirement for employees to make up time.”

Employees may be reluctant to confide in OH or feel misled if the OH role is purely to assess fitness for purpose. OH’s role and “whose side” they are on must be transparent. Equality policies must be clear that the promotion prospects of someone affected by cancer should not be adversely affected and reasonable adjustments will be considered. Section 60 of the Equality Act provides that pre-employment health questions from a prospective employer are prohibited other than in very limited circumstances.

Sick pay and leave

Your employee has just returned to work immediately after radiotherapy treatment. He has used all of his contractual sick pay, but has asked for paid time off to attend medical appointments. The Macmillan survey found that 8% of respondents found it difficult or were not able to take time off for medical appointments.

Ensure that HR policies are accessible, clear and current, but be careful in “going by the book”. Issues can arise where policies appear clear-cut but, for example, there is discretion to extend sick pay or pro-rata bonuses.

Consider your duty to make reasonable adjustments. The courts will take into account the employer’s size and resources in determining what is “reasonable” and have held, for example, that extending sick pay would be exceptional as the objective is not charity but to get disabled people back to work. However, paid time off for medical appointments or even complementary therapies, increasingly offered in tandem with medical treatments, could be reasonable, as could relaxing the often debilitating requirement for employees to make up time. There is no express legal entitlement to this, but it would meet the objective of re-engaging and retaining valued employees.

Take advice where more complex issues arise – for example, in relation to holiday accrual and long-term sickness absence where the legal position is less certain. You should ensure that employees take appropriate independent financial advice on insurance and their pension.

quotemarks Carers of those with cancer enjoy additional protection from disability discrimination, even though they do not have cancer themselves.”

Changes to working arrangements

Your employee is returning to work, having completed treatment for breast cancer. She is tired and emotional, but feels under pressure to come back as her team has been stretched. In the Macmillan survey 13% of respondents said that employers did not make reasonable changes to jobs.

The employee has had their treatment, taken time off and is rested and fit. That is the assumption. Support from colleagues can drop off when everyone gets busy and stressed.

Keep an open dialogue with employees during their absence and on their return. A return-to-work plan should be agreed and kept under review. It should factor in current medical advice on the employee’s condition and capabilities, assessing any risks and potentially allow for a phased return, change to workload, hours, start and finish times or working from home.

This is basic absence management practice when an employee is out of the business for a while, but it is also in line with the duty to make reasonable adjustments. Many employers, particularly small employers, struggle with this. Larger employers might have to go further as it might be reasonable to top up pay on a phased return for a short period. However, you cannot always plead size as a barrier to flexibility. Does size really matter when you consider low-cost technology in the context of working from home?

Disciplinary and dismissal

Your employee returned to work a year ago following treatment. His cancer is in remission. The disciplinary procedure has been initiated because of sporadic sickness absences. A redundancy programme has just been announced. The selection criteria include attendance and flexibility. The Macmillan study found that 11% of respondents had an unfavourable appraisal or performance review linked to cancer – for example, they had a lot of sick leave or tiredness and had not met targets as a result.

Employees whose cancer is in remission are still protected from disability discrimination. Remember your duty to make reasonable adjustments when making business decisions or this could result in discrimination claims. It is easy to forget the situation if the employee appears to be symptom free, but there is the hidden emotional and psychological impact of their condition to consider.

Look behind the reasons for absence. If they are cancer related, consider whether or not the absence should be treated differently or discounted. Reconsider redundancy selection criteria such as attendance, which might be indirectly discriminatory.

Manage other employees’ reactions. Protect the employee from harassment because of their absence or “different” treatment, or from victimisation – for example, finding they are selected for redundancy because they raised a grievance about a disciplinary procedure.

Carers

A senior employee has had a lot of time off to look after her partner with cancer. She comes in late, leaves early and no longer attends client events. It is appraisal time.

As an estimated one employee in seven becomes a carer in one capacity or another, according to Macmillan, employers will have to manage and support this. Employers may be aware that legislation exists to protect and provide flexibility for carers in the workplace; however, carers of those with cancer enjoy additional protection from disability discrimination, even though they do not have cancer themselves. It is potentially discriminatory to treat employees less favourably because of the disability of the person “‘associated” with them, meaning the person they care for.

Keep this in mind when reviewing performance or absence. Avoid making stereotypical assumptions about carers’ priorities. Carers may also be more likely to experience harassment from colleagues who have less tolerance because of their own personal commitments. Make sure handbooks and equality policies cover carers’ rights – for example, flexible working, time off for compassionate leave to deal with emergency care or even career breaks and sabbaticals.

As a final word, it is recognised that the reason why many employees struggle to remain in, or return to, work is the lack of vocational rehabilitation services – something that many employers just cannot offer. However, the Government is being urged to ensure that its proposed new Health and Work Assessment and Advisory Service prioritises the availability of this to people with cancer.

Jackie Cuneen is an employment lawyer at Starr & Partners LLP.