Legislation about work and cancer
People with cancer are protected from discrimination by law.
The Equality Act 2010 & the Disability Discrimination Act 1995
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In England, Scotland and Wales, The Equality Act 2010 combined various discrimination laws, including the Disability Discrimination Act 1995 (DDA), under one piece of legislation.
The Disability Discrimination Act 1995 (DDA) and its extension, the Disability Discrimination Order of 2006, still protect people with a disability in Northern Ireland.
How are people with cancer protected by The Equality Act 2010 and the Disability Discrimination Act 1995 (DDA)?
Under these acts, it’s unlawful for an employer to treat a person less favourably (discriminate against them) because of their disability. Everyone with cancer is classed as disabled under these acts. Even if a person who had cancer in the past has been successfully treated and is now in remission, they will still be covered by these acts. This means their employer must not treat them less favourably for any reason relating to their past cancer.
Which areas of employment are covered by the legislation?
The Equality Act and the DDA cover all areas of employment, including:
the recruitment process
terms, conditions and benefits
opportunities for promotion and training
when employment has ended.
They also cover treating someone less favourably than other workers because of their cancer. This includes harassment and victimisation.
Both the Equality Act and the DDA require employers to make reasonable adjustments to make it easier for an employee with a disability to work. These are required to remove any substantial disadvantage they face in the workplace because of their cancer, when compared with others who do not have cancer.
Around one in 10 people (9%) who returned to work after cancer treatment say they felt harassed to the point they felt they could not stay in their job.
The Equality Act and the DDA cover various types of discrimination. In this chapter, we’ve given examples to show how these types of discrimination can affect people.
Direct discrimination is when, because of their disability, a person receives less favourable treatment compared with someone who doesn’t have that particular disability.
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 came back, she would have to take sick leave.
Legislation helps to protect people who have a disability from being dismissed, refused a job, or being treated less favourably than people without a disability because people assume they can’t carry out their job or certain tasks.
Direct discrimination can happen 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, this is direct discrimination. 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 (applies in England, Scotland and Wales)
Discrimination arising from disability (DAD) applies under the Equality Act, but not the DDA. That means it doesn’t apply in Northern Ireland. It is when someone with a disability is treated less favourably 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. For something to be classed as direct discrimination, you need to show that a non-disabled person would have been treated differently, but with DAD, you don’t.
Daffyd’s boss gave him a poor appraisal because he had missed targets due to his treatment and cancer-related fatigue. Even if the employer treated other people in the same way for missing their targets, it would be unlawful to treat Daffyd like this, unless the employer could show that the action was justified under the Equality Act.
DAD is unlawful when the unfavourable treatment can’t be justified. In some cases, where there is a justifiable reason for it, DAD is allowed. DAD is lawful when you can prove it is meant to meet a real objective in a fair, balanced and justifiable way, and when any reasonable adjustments have been considered.
It is unlikely to be easy for an employer to defend their reasons for DAD and for it to be justified. Usually, any potentially unfavourable treatment can be overcome by making reasonable adjustments. So, assessing whether DAD is justifiable is likely to involve considering whether any adjustments could have been made.
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 is disabled. Before an employer can use this to defend themselves, they must have taken all reasonable steps to find out if someone has a disability.
Indirect disability discrimination (applies in England, Northern Ireland, Scotland and Wales)
Indirect disability discrimination applies under both the Equality Act and the DDA. It is when there is a rule, policy or practice that applies to everyone, but that puts people with a particular disability at a disadvantage compared with people who don’t have that disability.
As with DAD, a rule or practice may still be lawful if it can be proved that its aim is to meet a legitimate objective in a fair, balanced and reasonable way, and that any reasonable adjustments have been considered.
Kathleen’s company needed to make some redundancies. The company uses the amount of sick leave taken as selection criteria for redundancy.
As Kathleen had taken time off work because of cancer, she and other people with cancer were at a disadvantage in comparison with people who had not had cancer. This is indirect discrimination unless the employer could show that it could be legally justified.
Employers need to strike a balance between the negative impact of rules or practices on some people, and the reasons for applying them. Employers therefore need to consider whether there is any other way to meet their objectives that won’t have a discriminatory effect. If you’re unsure, specialist legal advice relating to employment law is available. Contact the Law Society of England and Wales, the Law Society of Scotland or the Law Society of Northern Ireland.
Harassment (applies in England, Northern Ireland, Scotland
Harassment is covered under both the Equality Act and the DDA. Disability harassment is when someone experiences unwanted behaviour related to their disability, which causes them to feel intimidated, degraded or offended.
After her chemotherapy, Rebecca’s colleagues were always 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 the staff.
Victimisation (applies in England, Scotland, Wales and parts of Northern Ireland)
Victimisation is when an employer treats someone badly because they made a complaint under the Equality Act or the DDA, helped someone else to make a complaint, or because the employer thinks that they may be planning to make a complaint. This protection applies whether or not the person is disabled.
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 spoke to a different department. She then stopped Jim from going on a training course and gave him a poor appraisal.
Under the Equality Act, but not the DDA, a victim doesn’t need to prove that they have been treated less favourably than someone who has not made a complaint. They only need to show that they were treated badly and they believe it was because of their complaint. There is no protection if the employee has been intentionally dishonest.
Asking about health during recruitment (applies in England, Scotland and Wales)
Under the Equality Act, employers can only ask questions about a candidate’s health during the recruitment process (including whether the candidate has a disability) in extremely limited situations. Employers can usually only ask someone about their health after they have been offered the job.
If an employer then withdraws the job offer on the basis of information about a candidate’s medical circumstances, they must make sure that this is not because they are discriminating against someone due to their health. Employers first need to consider any reasonable adjustments that could be made to allow the person to take the job.
Employers are allowed to ask questions about a person’s health during the recruitment process if they are:
monitoring equality and diversity (making sure their employment policies and processes are not discriminatory to any groups)
conducting positive action (making sure they recruit people from under-represented groups, such as ethnic minorities or people with disabilities)
enquiring whether reasonable adjustments are needed for the recruitment process (for example, having the interview in a ground floor room)
establishing whether the job applicant will be able to carry out a function that is fundamental to the role (for example, heavy lifting).
In Northern Ireland, while employers are not prevented from asking job applicants questions about their health, they are still prevented from discriminating against applicants on the basis of their disability.
How are carers protected?
Disability discrimination legislation provides additional protection for people who experience discrimination or harassment because they are associated with someone with a disability. For example, it would be unlawful if the partner of someone who has cancer was refused a promotion because of concerns that they would be unable to give sufficient attention to the job for that reason.
Employers don’t need to make reasonable adjustments for those who are not disabled, including carers. However, carers do have the right to a reasonable amount of unpaid time off work for caring responsibilities.
Paula wants to take time off work to care for her husband Mark while he has chemotherapy. While Paula is at work, her colleague makes offensive comments about Mark's cancer and about him losing his hair. If Paula felt her colleague’s comments were creating a humiliating or degrading environment, then the employer is likely to be vicariously liable (an employer can be held responsible for the acts of its employees during their employment). This is unless the employer can show it took all reasonable steps to prevent the harassment. A claim could also be made directly against Paula’s colleague.
Emergency time off for dependants
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 choose to provide paid time off for employees in these circumstances.
A ‘dependant’ is defined as a spouse, civil partner, child, parent or grandparent of the employee, or someone who depends on them for care, for example an elderly neighbour. In addition, ‘dependant’ includes those who would reasonably rely on the employee to help them if they were ill, or to arrange care for them. This definition of a dependant is different from the one used under the right to request flexible working.
An employee is entitled to take reasonable time off for dependants when:
They need to provide assistance if a dependant falls ill, gives birth, is injured or assaulted.
They need to arrange care for a dependant who is ill or injured. This could include, for example, arranging to employ a temporary carer. This does not enable the employee to take additional or ongoing time off to care for the dependant themselves.
A dependant dies.
They need to deal with the unexpected disruption of care arrangements for a dependant.
They need to deal with an unexpected incident that involves their child during school (or other educational establishment) hours.
These allowances don’t apply to pre-planned events, for example, medical appointments.
What counts as a reasonable amount of time off work will depend on the individual circumstances. The nature of the incident, the relationship between the employee and the dependant, and the extent to which another person is available to assist with caring for the dependant, are all relevant factors. The employee must tell the employer as soon as possible the reason for the absence and how long they expect to be absent. Decisions about time off should always be based on the individual situation.
Right to request flexible working
The Work and Families Act 2006, the Employment Act 2002, and the Employment Rights (Northern Ireland) Order 1996, together with other pieces of legislation, give employees the right to request flexible working. This includes changed hours or working from home.
Employees must meet the eligibility criteria. And there is no automatic right to actually work flexibility – 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 person’s contract, usually after a trial period, unless agreed otherwise.
To be eligible for this right, the person making the request must:
be making the request about a child under the age of 17 (or 18 if the child is disabled)
be the child’s mother, father, guardian, adoptive or foster parent, or the spouse, civil partner or partner of one of these people.
Or, they must be, or expect to be, caring for a person aged 18 or over who is in need of care and who is:
a spouse, partner or civil partner
a close relative, such as a parent, parent-in-law, adult child, sibling, sibling-in-law, uncle, aunt, grandparent or step-relative
any adoptive relation or someone who is living at the same address as the carer.
For the purposes of this legislation, this definition of who a carer is and who they may be caring for is different from the one used when it comes to requesting emergency time off work (see above).
Employees must have worked for their employer for 26 weeks at the date an application for flexible working is made. Employees can also make flexible working requests to look after children – and there may be an overlap, for example when a parent has a disabled child.
The Human Rights Act 1998 and the Data Protection Act 1998, which cover the whole of the UK, protect 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 health professional before it is supplied to the employer.
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 meeting notes containing details about the employee’s medical condition. This is sensitive personal data and should be treated as such.
For more information about dealing with cancer at work, call us.
The information in this section is not a substitute for legal advice. If you need legal advice, contact a solicitor. While we do everything we can 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.