Legal rights about work and cancer

In England, Scotland and Wales, employees with cancer are protected from discrimination in the workplace by the Equality Act 2010. The Disability Discrimination Act 1995 and its extension, the Disability Discrimination Order of 2006, protect workers in Northern Ireland.

Discrimination happens when an employee is treated less favourably than another person because of their disability. Discrimination can affect different aspects of employment:

  • the recruitment process
  • terms, conditions and benefits
  • opportunities for promotion and training.

Under these acts employers are requested to make reasonable adjustments to make it easier for an employee with a disability to work.

Discriminatory actions fall under three categories:

  • direct discrimination
  • discrimination arising from disability (DAD)
  • indirect disability discrimination.

Legislation also protects employees from:

  • harassment – when an employee experiences unwanted behaviour due to their disability.
  • victimisation – when an employee is treated unfairly after making a complaint.

Under the acts, carers are also protected from direct discrimination and harassment.

In England, Scotland and Wales, employers can only ask questions about a candidate’s health in an interview under very limited circumstances. They should ensure they are not discriminating against a candidate because of their health. Information about an employee’s health is confidential and protected under the Data Protection Act 1998.

How people with cancer are protected from discrimination

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.

Legislation protects people with cancer from being discriminated against at work because of cancer.

  • In England, Scotland and Wales, people with cancer are protected by The Equality Act 2010.
  • In Northern Ireland, people with cancer are protected by the Disability Discrimination Act 1995 (DDA) (as amended).

This legislation doesn’t just protect employees. It also protects people applying for jobs and, in most cases, people who are self-employed.

Carers are also protected from some types of discrimination. See our section about carers for more information.

Which areas of employment are covered by this legislation?

The Equality Act and the DDA cover all areas of employment. This includes:

  • the recruitment process
  • terms and conditions of employment, and any benefits
  • opportunities for promotion and training.

The protection doesn’t end once cancer treatment finishes.

Someone with cancer still has legal protection against discrimination at work, even when there is no longer any evidence of them having cancer. This means employers must not treat people less favourably for any reason related to cancer they’ve had in the past. This protection applies even if they no longer need treatment or they move to another employer.

Reasonable adjustments

Both the Equality Act and the DDA say that you have to make reasonable adjustments to the workplace and working practices for employees with cancer. These are required to remove any substantial disadvantage employees face in the workplace because they have cancer.


Types of disability discrimination

There are several types of disability discrimination. The Equality Act protects people in England, Scotland and Wales from all of them. The DDA protects people in Northern Ireland from some of them. They are:

  • direct disability discrimination
  • discrimination arising from disability (not covered in the DDA, so not applicable in Northern Ireland)
  • indirect disability discrimination (not covered in the DDA, so not applicable in Northern Ireland)
  • disability harassment
  • victimisation (partly covered in the DDA)
  • failure to make a reasonable adjustment.


Direct disability discrimination

Protection from direct disability discrimination applies in England, Scotland, Wales and Northern Ireland.

Direct disability discrimination is when, because of their disability, a person receives less favourable treatment than someone who doesn’t have that disability.

Direct discrimination can happen even if it is meant with good intentions. For example, an employer might suggest that promoting an employee would be too demanding, because of their cancer. But it would be acceptable for an employer to have a sensitive conversation with the employee about the impact of a new job on their health.

Some problems may happen because of misunderstandings about cancer. An employer may assume that a person with cancer can’t do the same job any more. Or they may assume the employee is less committed to work because of their illness, or that the stress of having cancer makes them less suitable for promotion.

Other members of the team may also think that they will need to do extra work because the person with cancer can’t do their job.

Any of these attitudes towards people with cancer can lead to subtle or obvious discrimination at work.

Razia’s story

Razia applied for a job, but she was rejected because the employer knew that she had a cancer diagnosis in the past. The employer was worried that Razia would have to take sick leave if the cancer came back.


Discrimination arising from disability

Protection from discrimination arising from disability (DAD) applies in England, Scotland and Wales, but not in Northern Ireland.

DAD is when someone with a disability is treated less favourably because of something that happens as a consequence of their disability. It’s different from direct disability discrimination, which is when someone is treated less favourably because of the disability itself. With DAD, you don’t need to show that a non-disabled person would have been treated differently.

In some cases, DAD may be justified. The employer would have to prove that treating the employee that way is meant to help achieve an aim of the organisation in a fair and balanced way.

The employer must also show that they have considered any reasonable adjustments. Whether DAD can be justified will depend on the individual circumstances.

There will be no DAD if the employer can show they didn’t know, and couldn’t reasonably be expected to know, that the person has a disability. They must have taken all reasonable steps to find out if they have a disability.

Dafydd’s story

Dafydd missed targets at work because of treatment and fatigue related to his cancer. His boss gave him a bad appraisal because of this. Even if his employer treated other people the same way for missing their targets, it would be against the law to treat Dafydd this way unless his employer could show it was justified under the Equality Act.


Indirect disability discrimination

Protection from indirect disability discrimination applies in England, Scotland, and Wales, but not in Northern Ireland.

Indirect disability discrimination is when there is a rule, policy or practice that applies to everyone, but it puts disabled people at a disadvantage compared to people who don’t have a disability.

As with DAD, a rule, practice or policy may not be classed as indirect disability discrimination if an employer can show it is meant to help achieve an aim of the organisation in a fair and balanced way. The employer must also have considered any reasonable adjustments.

Unlike DAD, the employer does not need to know about a person’s disability to indirectly discriminate against them.

Kathleen’s story

Kathleen’s company had to make some people redundant. One of the selection criteria was how much sick leave people had taken. Kathleen had taken time off work because of cancer, so she was at a disadvantage compared to other people who had not had cancer. This is indirect discrimination unless the employer can show that it can be justified under the law.


Disability harassment

Protection  from disability harassment applies in England, Scotland, Wales and Northern Ireland. Disability harassment is when a person experiences unwanted behaviour related to their disability, which causes them to feel intimidated, degraded or offended.


Victimisation

Protection from victimisation applies in England, Scotland and Wales, and partly in Northern Ireland. Victimisation is when a person is treated unfairly because they have done, or will do (or someone thinks they have done or will do), something that the law protects. This includes making a complaint about discrimination or harassment under the Equality Act or the DDA.

It also applies if a person has helped someone else make a complaint and they are treated badly. And it applies if an employer thinks they may make a complaint or help someone to make one. This applies whether the person is disabled or not.

Under the Equality Act in England, Scotland and Wales, a person only needs to show they were treated unfavourably and they must genuinely believe this is true.

Under the DDA in Northern Ireland, a person also needs to prove that they have been treated less favourably than someone who has not made a complaint.

A person is not protected by legislation if they don’t act honestly and don’t believe what they are saying is true. But they will be protected if they give information that is wrong but which they genuinely thought was true at the time.

Jim’s story

Jim needed time off from work to go to a chemotherapy appointment. His boss was being awkward about his request. Jim reported the problem to the human resources department and the HR manager told Jim’s boss she had to give him the time off. Jim’s boss was angry that Jim had spoken to the HR department so she stopped him from going on a training course and gave him a bad appraisal.


Vicarious liability

An employer can be held responsible for how its employees behave during their employment. This is called being vicariously liable. An employer could be vicariously liable for direct disability discrimination or harassment that a person experiences from other employees because they have cancer.

An employer could also be vicariously liable for harassment if a person experiences unwanted behaviour from other employees because they are a carer.

Paula’s story

Paula’s husband Mark was having chemotherapy. While Paula was at work, her colleague made offensive comments about Mark’s cancer and his hair loss. Paula felt the comments were creating a humiliating or degrading environment, so her employer could have been held responsible for this harassment. This is unless the employer could show they took all reasonable steps to prevent the harassment.


Right to request flexible working

Flexible working could include changed hours or working from home. Since June 2014, all employees have the right to request flexible working in certain circumstances. Employees must have worked for their employer for 26 weeks at the date an application for flexible working is made. Employees can make one request every 12 months. Before June 2014, this right only applied to parents and carers.

There is no automatic right to work flexibility – the right is to make a request for this. Employers can refuse a request, but only on specified grounds. They must deal with requests in a ‘reasonable manner’. Employees can appeal against a refusal. ACAS has a free online guide to dealing with flexible working requests reasonably.

If a request is granted, it will be a permanent change to the person’s contract, usually after a trial period, unless agreed otherwise.

The main laws that cover this right are:

  • The Children and Families Act 2014
  • The Work and Families Act 2006
  • The Employment Act 2002
  • The Employment Rights (Northern Ireland) Order 1996.


Confidentiality

The  Human Rights Act 1998 and the Data Protection Act 1998 protect a person’s right to have personal information kept private. Both acts cover the whole of the UK. Personal information includes medical information.

  • An employer doesn’t have an automatic right to access an employee’s medical information.
  • But an employer may ask their employee’s permission to get a medical report on their health from their doctor or other health professional.
  • The employee has the right to see this report (if they ask to) before it is given to the employer.
  • You may want to talk to your employee about whether you want colleagues and clients to be told about their condition.
  • Employers can’t give out this information without the consent of the person with cancer.
  • Employers should take care to protect personal records, including emails and any meeting notes containing details about a person’s condition. This is sensitive personal data and should be treated as such.

Back to If you're an employer

Policies and resources

If one of your employees has cancer or is caring for someone affected by cancer, we have information to help you support them.

Managing cancer in the workplace

In the UK, over 700,000 people of working age are living with cancer. Managers play a fundamental role in supporting employees affected by cancer.

How cancer affects people

Your employee’s ability to work may change after a cancer diagnosis. To support them, it’s helpful to understand how treatment may affect them.

How to talk about cancer at work

Although it may be difficult for your employee to discuss their cancer diagnosis, open communication may enable you to support them.

Time off for your employee

Some people with cancer will be able to continue to work, others will need time off. There are different options to manage absences.

Occupational health advice

Occupational health advisers can help employers assess whether a role needs to be adjusted in light of an employee’s health.

Supporting carers

Carers who need to look after a dependant are allowed to take emergency time off. They may also wish to request flexible working.

Bereavement

Although many people survive cancer, your employee or the person they are caring for may die from their illness.