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Find out about the Equality Act 2010, including information about what you can do to avoid discrimination regarding cancer.
See how an employer made temporary changes to an employee’s work duties to help them remain in work during treatment.
The Equality Act 2010 has replaced discrimination laws in England, Scotland and Wales – including the Disability Discrimination Act (DDA) – bringing them together under one piece of legislation.
The Disability Discrimination Act still protects people with a disability in Northern Ireland. The Equality Act aims to make discrimination legislation more consistent, clearer and easier to follow. It may require you to make some changes to the way you manage employees. This includes people who have cancer, or who care for someone with cancer.
The information on this page is not a substitute for legal advice. If you need legal advice, please contact a solicitor. While we endeavour to provide information of the highest quality, Macmillan will not accept any liability for the use, or inability to use any information provided in this guide.
Under the 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. 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.
Like the DDA, the Equality Act requires employers to make reasonable adjustments for employees with a disability. But it also includes important new provisions to prevent discrimination arising from disability, indirect discrimination, and discrimination against carers. It also restricts medical questions being asked during the recruitment process.
Previously, protection did not extend to people who are mistakenly thought to have a disability.
These people, and those who experience discrimination because of their association with a person who has a disability, are now protected against both direct discrimination and harassment.
The Equality Act covers all aspects of employment including the recruitment process; terms, conditions and benefits; and opportunities for promotion and training. It also covers unfair treatment compared to other workers, such as dismissal, harassment and victimisation.
The act protects people who experience discrimination because they are associated with someone who has a disability. For example, it would be unlawful if the partner of someone who has cancer was refused promotion because of concerns that they would be unable to give sufficient attention to the job. However, the act doesn’t allow reasonable adjustments to be claimed for caring responsibilities, although other legislation may provide the right to a ‘reasonable’ amount of unpaid time off work for caring responsibilities.
Discrimination includes direct discrimination and harassment because of perception, association or a past disability. Here we go into a bit more detail about discrimination, and what you can do to avoid it.
Direct discrimination occurs where, because of their disability, a person receives less favourable treatment compared to someone who doesn’t have that particular disability.
Example of direct discrimination
Razia was rejected when she applied for a job because her employer knew that she had previously had a cancer diagnosis. The employer was concerned that if it recurred she would have to take sick leave.
This provision in the Equality Act is intended to stop people who have a disability from being dismissed, refused a job, or receiving worse treatment at work because of prejudice or stereotypical assumptions.
Direct discrimination can occur even if it is meant with good intentions. For example, if an employer suggests that a person with cancer would be better off not being promoted because the new job would be too demanding. However, it would be appropriate to have a sensitive conversation with an employee about the impact of a new role on their health.
Discrimination arising from disability (DAD) occurs when someone with a disability is treated unfavourably because of something relating to their disability. It’s different from direct discrimination, which occurs when a person is treated less favourably because of the disability itself. Unlike direct discrimination there is no need to show that a non-disabled person would have been treated differently.
Example of discrimination arising from disability
Jim’s boss gave him a poor appraisal because he had missed targets due to treatment and fatigue arising from his disability. Even if the employer treated other people in the same way for missing their targets, it would be unlawful to treat Jim like this unless the employer could show that the action was justified under the Equality Act.
DAD only occurs when the unfavourable treatment can’t be justified. Action will be lawful if it can be shown that it’s intended to meet a legitimate objective in a ‘proportionate’ (ie fair, balanced and reasonable) way.
It is important to understand the need to apply a flexible approach when a rule or practice disadvantages any employee who has a disability. Employers need to strike a balance between having a negative impact on that person, and any potentially lawful reasons for the action.
DAD will also be lawful if the employer can show that he or she didn’t know, and couldn’t be reasonably expected to know, that the person was disabled. Before an employer can rely on this defence, they must have taken all reasonable steps to find out if an employee has a disability.
This is a new provision and replaces previous protection in disability discrimination law that was not fully effective. The way in which an employer can legally justify treatment that has a negative impact on a disabled person has also changed.
Example of indirect disability discrimination
An employer used the amount of sick leave taken by employees as criteria for selection of redundancy. Kathleen had taken time off work because of cancer. The rule would affect her, and other people with cancer, adversely compared to people who do not have cancer. It would constitute indirect discrimination unless the employer could show that it was legally justified.
Indirect disability discrimination happens when there is a rule, policy or practice that applies to everyone, but that disadvantages people with a particular disability compared to people without that disability.
Action will be lawful if it can be justified as meeting a legitimate objective in a fair, balanced and reasonable way.
As with DAD, it’s necessary for employers to strike a balance between the negative impact of rules or practices on some people and the reasons for applying them. You will therefore need to consider whether there is any other way to meet your objectives that won’t have a discriminatory effect. If you’re unsure, specialist legal advice relating to employment law is available.
Harassment is unwanted behaviour related to disability, which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Example of harrassment
Following her chemotherapy, Rebecca’s colleagues were constantly teasing her about her hair loss. She felt humiliated but didn’t feel able to challenge them. She complained to her manager, who then spoke to staff.
It’s unlawful victimisation for an employer to treat someone badly if they have made a complaint about discrimination or harassment under the Equality Act, helped someone else to make a complaint, or because the employer thinks that they may do these things. This applies whether or not the person is disabled.
Under the act, there is no need for a victim to prove that they have been treated less favourably than someone who has not made a complaint. The employee only needs to show that they were treated badly.
Example of victimisation
Jim’s boss was being awkward about his request for time off for a chemotherapy appointment. Jim reported the problem to the human resources department. The HR manager told Jim’s boss that she had to give him the time off. Jim’s boss was angry that Jim went ‘over her head’, and as a result stopped Jim from going on a training course, and also gave him a poor appraisal.
In most cases, employers can no longer ask questions about a candidate’s health during the recruitment process. This includes asking whether or not a candidate has a disability. Employers can usually only ask someone about their medical circumstances after they have been offered the job.
If, on the basis of information about a candidate’s medical circumstances, an employer then withdraws the job offer they will need to make sure that this is on a non-discriminatory basis. Employers therefore first need to consider any reasonable adjustments that could be made to allow the person to take up the post.
It’s still acceptable to ask questions about a person’s health during the recruitment process when questions are for the following purposes:
Employed carers have the right to take a ‘reasonable’ amount of unpaid time off work to deal with particular situations affecting their dependants. This right is covered by the amended Employments Rights Act 1996. In Northern Ireland these laws are called the Employment Rights (Northern Ireland) Order 1996 and the Employment Relations (Northern Ireland) Order 1999. Some organisations enhance this by providing paid time off for employees in these circumstances.
A dependant is defined as a spouse, civil partner, child or parent (but not grandparent) of the employee or a person who lives in the same household as the employee, excluding tenants, lodgers and employees. In addition, ‘dependant’ includes those who reasonably rely on the employee to provide assistance if they fall ill or to make arrangements for the provision of care.
An employee is only entitled to take time off for dependants under this statutory right where it is necessary for that person:
It should be noted that this doesn’t apply to planned time off to care for dependants, for example, to take them to a medical appointment.
What counts as a reasonable amount of time off will depend on the individual circumstances. The nature of the incident and the extent to which another person was available to assist are relevant factors, but not any potential disruption to the employer’s business. An employer should always take into account the employee’s individual circumstances. Decisions should always be based on the facts of each case.
The Work and Families Act 2006 and the Employment Rights Act give employed carers the right to request flexible working, such as changed hours or working from home. There is no automatic right to actually work flexibly; the right is to make a request to do so. Employers can refuse a request, but only on specified grounds. Employees can appeal against such a refusal. If a request is granted, it will be a permanent change to the employee’s contract, unless agreed otherwise.
For the purposes of this legislation, the definition of a carer is someone who is, or expects to be, caring for a person aged 18 or over who is in need of care and who is either:
Employees must have worked for their employer for 26 weeks at the date an application is made. Flexible working also applies to parents as well as carers – and there may be an overlap, for example when a parent has a disabled child
It’s helpful if the person affected by cancer agrees that colleagues and clients can be informed about their condition. However, an employer can’t divulge this information without the employee’s consent. Employers should take care to protect the employee’s records, including emails and any notes from meetings containing details about the employee’s medical condition. This is sensitive personal data and should be treated as such.
If you’d like to know more, visit our work section| or call us on 0808 808 00 00.
The Human Rights Act 1998 protects an individual’s right to have personal information kept private. This includes medical information. An employer doesn’t have an automatic right to access medical information about an employee. However, an employer may ask an employee for their consent to seek a medical report on their condition from their doctor or other health professional. The employee has the right to see any medical report provided by their GP or treating health professional before it is supplied to the employer.
Content last reviewed: 1 May 2011
Next planned review: 2013
For answers, support or just a chat, call the Macmillan Support Line free (Monday to Friday, 9am-8pm)
Our guide to the current legislation
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