Discrimination at work resulting from a cancer diagnosis

Research has shown that most employers do not discriminate against employees who are diagnosed with cancer and are having treatment. Your employer should provide help and support to enable you to do your job. There are laws protecting the rights of workers who suffer from illnesses like cancer.

Disability Discrimination Act (DDA) Back to top

Under the Disability Discrimination Act (DDA), it is unlawful for an employer to discriminate against a person because of their disability. Everyone with cancer is classed as disabled under theDDA and so is protected by this Act.

The DDA covers workers who were disabled in the past, even if they are no longer disabled. So a person who had a cancer in the past that has been successfully treated and is now ‘cured’ will still be covered by the DDA. This means their employer must not discriminate against them for a reason relating to their past cancer.

The employer has a duty to make ‘reasonable adjustments’ to workplaces and working practices to ensure that people with a disability are not at a disadvantage compared to others.

What is considered a ‘reasonable adjustment’ depends on things such as:

• the cost of making the adjustment
• the amount the adjustment will benefit the employee
• the practicality of making the adjustment
• whether making the adjustment will affect the employer’s business/service/financial situation.

Some examples of a reasonable adjustment include:

• allowing an employee time off to attend medical appointments
• modifying a job description to take away tasks that cause particular difficulty
• allowing some flexibility in working hours
• allowing extra breaks to help an employee cope with fatigue
• temporarily allowing the employee to be restricted to‘light duties’
• adjusting performance targets to take into account the effect of sick leave/fatigue etc on the employee
• moving the employee to a post with more suitable duties (with the employee’s agreement)
• moving a work base – for example, transferring to a ground floor office if breathlessness makes it difficult to climb stairs
• ensuring suitable access to premises for employees using wheelchairs/crutches etc
• providing toilet facilities appropriate for a disabled employee
• allowing working from home
• allowing ‘phased (gradual) return’ to work after extended sick leave
• providing appropriate software (such as voice-activated software for employees who can’t type)
• changing a job interview date/time so as not to clash withan applicant’s medical appointment.

The DDA covers the recruitment process; the terms andconditions of employment; opportunities for promotion, transfer, training and benefits; unfair dismissal; unfair treatment compared to other workers; and harassment and victimisation.

If you want to know how the DDA can help you, you can ask the information officers at the Equality and Human Rights Commission helpline or your local Citizens Advice Bureau.

Despite these laws, discrimination may still occur if your employer doesn’t take your situation into account. For example,this can include:

• an employer not making reasonable changes to enable you to do the job (eg to cope with fatigue)
• an employer suggesting that a person with cancer would be better off not continuing to work
• being dismissed for a reason relating to your cancer
• being demoted to a lower-paid or less demanding job
• being passed over for promotion in favour of someone with less experience or ability to do the job
• being chosen for redundancy for a reason related to the cancer (for example, if you’ve had a higher rate of sick time than your colleagues).
• not being given a job because of the cancer
• not being allowed time off for medical appointments
• having an unfavourable appraisal or performance review (for example, if you have had a lot of sick leave or tiredness and have not met targets or objectives as a result of this)
• an employer disrupting your entitlement to sick pay
• being harassed − an employer making an employee’s life very difficult so that the employee feels that they cannot stay in their job (eg being teased about hair loss, or being laughed at or whispered about by colleagues)
• being abused by employers or colleagues (for example, being given unfair workloads)
• victimisation (see below).

Some problems may happen because of misunderstandings about your cancer. Your employer may assume that you can no longer do the same job, or that the stress of having cancer makes you a poor candidate for promotion.

Your colleagues may also think that they will need to do extra work because you can’t do your job. Any of these attitudes towards people with cancer can lead to subtle or obvious discrimination in the workplace.

Victimisation Back to top

Under disability rights law, victimisation is when a disabled employee is treated less favourably than other employees as a result of their attempt to assert their rights as a disabled person.

An example of this would be that an employee’s manager is awkward about a request for time off for a chemotherapy appointment. The employee reports the problem to the human resources department. The human resources manager tells the manager that they must let the employee have the time off.

The manager is angry that the employee went ‘over their head’ to the human resources department. As a result the manager doesn’t allow the employee to go on a training course and gives them a poor appraisal. So, victimisation occurs when an employer takes revenge on an employee for trying to assert their disability rights.

If you are being discriminated against or victimised Back to top

If you feel that you are being discriminated against, you can work with your supervisor, manager or human resources department to resolve the problem informally.

Talking openly to your manager about your needs and their needs may help to resolve the situation.

If you feel unable to talk to your manager, you can ask someone in the human resources department or an occupational health adviser for help. If you belong to a trade union, you can get help and support from a union representative.

What you can do for yourself

• Find out about relevant company policies from your employeror human resources department. Look at the Employee Handbook if you have one.
• Go to your employer with suggestions and solutions to demonstrate your commitment to your job.
• Suggest working from home, flexible hours, using holiday time, changing your role or job description, adjusting targets or objectives, or changing to lighter duties.
• If you go back to work after long-term sick leave, suggest a ‘phased return’ in which you increase your hours gradually over a period of time.
• Know your legal rights – ask your union representative or speak to a support organisation.
• If adjustments are needed at your workplace, ask about the ‘Access to work scheme’ at your local Jobcentre Plus office.

Unresolved problems Back to top

It’s not possible here to go into all the possible discrimination or victimisation problems that may occur. It’s alsonot possible to explain your rights in each situation. However, the suggestions below may help you if you feel that you are being victimised or treated unfairly.

Think carefully about your goals and the possible outcomes before taking any action.

• Contact the organisations that give information about legal rights and employment issues.
• Find a colleague or union representative who would bewilling to help you talk to the appropriate manager aboutyour situation. Always try to resolve any problems informally in the first instance. If this is unsuccessful, consider the consequences of raising a formal grievance or of going to an employment tribunal with a claim for disability discrimination, or unfair or constructive dismissal. Ask yourself whether the long and drawn-out process is worth it and how it will affect your life and family members. It may help to think about how youwould feel if you lost the claim. It’s important to examine these issues carefully, and to understand the possible impact of what you are getting into.
• Contact the Citizens Advice Bureau. It can provide free legal advice initially or put you in contact with a local solicitor who offers a free first interview, where they can assess your chances of success.
• Contact a lawyer if necessary. Law centres (listed in yourlocal phone book) can give free legal advice and can assess your case. The Law Society can give you details of lawyers specialising in employment rights.
• Be aware of your rights. The Disability Discrimination Act (DDA) covers any employee from the first day of their employment and even covers job applicants. You can use the Act to force an employer to make some adjustments to help you with your work or to compensate you for discrimination. The DDA does not cover members of the armed forces.
• Be aware of legal deadlines. If a dispute cannot be resolved and a worker covered by the DDA wishes to take legal action, an application must be submitted to an employment tribunal within three months of the discriminatory act/incident. The employer’s grievance procedure must have been completed before the case is taken to an employment tribunal.
• If you are dismissed by your employer, usually you can only claim for unfair dismissal if you have 12 months or more continuous service with your employer. Unfair dismissal law only applies to people who are ‘employees’ in the strict sense of the word. It does not apply to casual workers, agency workers, self-employed contractors, apprentices, or people on work experience.
• If an employer treats you so unfairly that it causes a total breakdown of trust and confidence between you and your employer, and you feel that you cannot continue your work, you can resign and make a claim for constructive dismissal. However, this is extremely risky as you will have to resign and constructive dismissal claims are very hard to win. They should never be considered without taking legal advice. In order to claim constructive dismissal you must resign promptly in response to your employer’s behaviour and must make your reason for leaving clear – for example, in your resignation letter.

Help with legal costs Back to top

Be aware of the financial effects of legal action. Legal cases can be extremely expensive. Some solicitors take cases on a no-win–no-fee basis. This should mean that you only pay the solicitor if they win your case, but check with them to see if there are any hidden charges.

A small number of solicitors will take on disability discrimination claims under the government’s Legal Help scheme, which is means tested. The scheme provides free legal assistance to prepare the case, but does not cover legal representation at a tribunal hearing. The Legal Services Commission has details of all solicitors who assist people under the Legal Help scheme.

If you are a member of a union, the union may be prepared to take your case to tribunal on your behalf, with their own legal experts, solicitors etc. Some specialist insurers can insure you against losing the case and having to pay both your own legal costs and your opponent’s. The insurer will look at your case and assess your chances of success. The amount of your premium is then based upon your chances. The insurance only covers one specific case and is not general legal insurance.