Discrimination at work resulting from a cancer diagnosis

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.

The Equality Act 2010 Back to top

The Equality Act 2010| has replaced discrimination laws in England, Scotland and Wales - including the Disability Discrimination Act| - bringing them together under one piece of legislation.

The Disability Discrimination Act still protects people with a disability in Northern Ireland. You can find out more about it by downloading our working through cancer information [PDF file, 267kb]|.

Under the Equality Act, it’s unlawful for an employer to discriminate against a person because of their disability. Everyone with cancer is classed as disabled under the act.

The Equality Act protects anyone who has, or has had, cancer. Even if a person who had cancer in the past has been successfully treated and is now ‘cured’, they will still be covered by the act. This means their employer must not discriminate against them for a reason relating to their past cancer.

Your employer has a duty to make 'reasonable adjustments’ to your workplace and working practices to ensure that you aren’t 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 remove 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 a ‘phased (gradual) return’ to work after extended sick leave
• providing appropriate software, such as voice-activated software for employees who can’t type.

The Equality Act covers all aspects of employment including the recruitment process; the terms, conditions and benefits of employment; and opportunities for promotion and training. It also covers unfair treatment compared to other workers, such as dismissal and harassment and victimisation.

If you want to know how the Equality Act can help you, phone the Equality and Human Rights Commission helplines|, contact Citizens Advice| or call the Macmillan Support Line|.

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 giving you a warning for high sickness absence levels, but not taking the cancer diagnosis into account
• 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 (eg, if you’ve used more sick leave 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 (eg if you’ve had a lot of sick leave or tiredness and haven’t 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 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, that you may be less committed to work because of your illness 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 if 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.

The law also protects people from being victimised if they have supported a disabled employee in making a complaint and are treated badly as a result.

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 employer or 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 an organisation that may be able to help.
• If adjustments are needed at your workplace, ask about the ‘Access to Work scheme’ at your local Jobcentre.

Unresolved problems Back to top

It’s not possible to go into all the possible discrimination or victimisation problems that may occur here. It’s also not 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 be willing to help you talk to the appropriate manager about your 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. It may be a lengthy process which is likely to take up a lot of your time. It may help to think about how you’d feel if you lost the claim. It’s important to examine these issues carefully before making a decision.
• Contact Citizens Advice. It can provide free 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 your local 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.
• The ACAS (Advisory, Conciliation and Arbitration Service) is a good source of information about employment rights and disputes.
• Be aware of your rights. The Equality Act 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 act covers members of the armed forces, but not if they have had a disability.
• Be aware of legal deadlines. If a dispute cannot be resolved and an employee covered by the Equality Act 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. While tribunals have discretion in appropriate circumstance to hear late claims, you shouldn’t rely on this.
• In addition to the Equality Act, if you’re dismissed by your employer, usually you can only claim for unfair dismissal if you have: 
  • at least one year's continuous service with your employer (if employed before 6 April 2012)   
  • two year's continuous service with your employer (if employed on or after 6 April 2012).
  Unfair dismissal law only applies to people who are ‘employees’ in the strict sense of the word. It doesn’t apply to casual workers, agency workers, self-employed contractors, apprentices, or people on work experience.
• If you have less than 12 months service, and are dismissed due to a reason relating to your cancer, you can still claim, but under disability discrimination, not unfair dismissal. You may also have protection under other employment laws.
• 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 you 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 doesn’t cover legal representation at a tribunal hearing. Contact Community Legal Advice| for more information.

If you’re a member of a union, the union may be prepared to take your case to tribunal on your behalf, with their own legal experts.

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.