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Being given a diagnosis of cancer can be completely devastating for the individual involved and their family. During an already emotional and stressful time, worrying about undergoing treatment and how to tell family and friends, matters such as finances and employment should be the least of your worries. However, unfortunately many employers are still not offering the appropriate support to people with cancer, leaving them with little choice but to leave employment or put their health and recovery at risk.

chemotherapy dripThe leading cancer charity Macmillan Cancer Support have revealed research, which examines the impact of cancer on working life. The results found that nearly a fifth of people (18%) of people who return to work after being diagnosed with cancer say they faced discrimination from their employer or colleagues. This included an employer suggesting that they would be better off not continuing to work, missing out on promotions, having an unfavourable performance review linked to their cancer or feeling bullied or harassed for a reason connected with their cancer. In addition, more than a third had other negative experiences, such as deterioration in career prospects, feeling stigmatised and feeling guilty for having to take time off for medical appointments.

The research found that 85% of people in work when they were diagnosed with cancer said that continuing work was important to them to maintain a sense of normality and for financial reasons. Despite this desire to remain in work, a concerning 24% of Scottish managers said they had concerns about employing someone who has or has had cancer and 30% of managers who had concerns worry the employee would not stay long in the job or fear they could use their illness as an excuse not to “pull their weight” at work.

Liz Egan, Working Through Cancer Programme Lead at Macmillan Cancer Support commented;

“We know that, for many people living with cancer, work helps them to feel more in control and maintain a sense of normality. Returning to work after cancer can also be an integral part of their recovery, so it is crucial that employers show support and understanding to make this a reality.”

The figures suggest that employers not only have misconceptions about employees with a cancer diagnosis, but they are also failing to fulfil their legal obligations. If a person has cancer, the law considers them to be disabled. This means they cannot be treated less favourably than others because they have cancer. If they are treated less favourably because they have cancer, this is discrimination.

Employees with cancer are protected from discrimination in the workplace by the Equality Act 2010. Discrimination can affect different aspects of employment including the recruitment and selection procedure. Employers can only ask questions about a candidate’s health in an interview under very limited circumstances. The protections also cover issues during employment such as terms and conditions, training and opportunities for promotion, dismissal and any other detriment suffered by an employee during the course of their employment.

Under the Equality Act, employers require to make ‘reasonable adjustments’ to make it easier for an employee with a disability such as cancer to remain in work.

These could include adjustments such as a change in hours, working from home, amended duties or a phased return to work. 

The Act protects employees with cancer from harassment, which is unwanted conduct that is related to them having cancer which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. In addition, if an employee complains about the discrimination they have suffered and an employer subjects them to a detriment because of this complaint (such as being disciplined or not getting a promotion), they can pursue a claim for victimisation.

Employers are not only liable for their own actions or failures to act, an employer can be held responsible for how its’ employees behave during their employment. An employer could be vicariously liable for direct disability discrimination or harassment that a person experiences from other employees because they have cancer.

The Employment Rights Act 1996 also protects employees with the required length of service from being unfairly dismissed. A fair dismissal requires an employer to carry out a thorough medical investigation to establish the nature of the illness and the prognosis. This prevents employers from making assumptions about a diagnosis of cancer and requires them to take into account the view of the employee and medical professionals when deciding whether to dismiss an employee on the grounds of ill health due to having a diagnosis of cancer.

Blog by Karen Osborne, Employment Solicitor

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