Employment laws provide protection against different types of disability discrimination. The Equality Act protects people in England, Scotland and Wales from all of them. The Disability Discrimination Act protects people in Northern Ireland from some of them.
If you live in England, Wales, Scotland or Northern Ireland, you are protected from:
- direct disability discrimination
- harassment because of a disability
- victimisation (with some differences in Northern Ireland)
- failure to make a reasonable adjustment.
If you live in England, Wales or Scotland, you are also protected from:
- discrimination arising from disability
- indirect disability discrimination.
Experiencing discrimination because of cancer can happen in different ways. Here are some examples of disability discrimination that may happen if you are affected by cancer:
- An employer giving you a formal warning for having a lot of time off sick, without taking your cancer diagnosis into account.
- An employer suggesting that it would be better if you retired or stopped working, because you have cancer.
- Being dismissed for a reason related to having cancer.
- Being moved to a lower-paid or less demanding job without your agreement, for a reason related to having cancer.
- Not getting a promotion when someone with less experience or less ability to do the job does, because of a reason related to having cancer.
- Being chosen for redundancy for a reason related to having cancer. For example, being chosen because you have used more sick leave than your colleagues, due to cancer or treatment.
- Not being offered a job because you have cancer.
- Not being allowed time off for medical appointments that are related to having cancer.
- Having a bad appraisal or performance review for a reason related to having cancer. For example, having a bad review because you have had a lot of sick leave or tiredness and so have not met targets or objectives.
- An employer making it difficult for you to get any sick pay you are entitled to.
You are protected from direct disability discrimination if you live in England, Scotland, Wales and or Northern Ireland.
Direct disability discrimination is when someone with a disability is treated less favourably than another person without a disability, because they have a disability.
Sometimes, this type of discrimination happens even if someone feels they are trying to help. For example, your employer might say that being promoted would be too difficult for you, because of your cancer. You can ask to have a conversation with your employer about the impact of a new job on your health. This way, you decide together what is best for you.
Some problems may happen because of misunderstandings about cancer. This can happen if:
- your employer thinks that you cannot do the same job any more
- your employer assumes that you will be less committed to work
- your employer thinks that the stress of having cancer makes you less suitable for promotion
- your colleagues think they will need to do extra work to make up for you being off sick.
Any of these attitudes towards people with cancer can lead to discrimination at work.
To claim direct discrimination, your employer does need to know, or be reasonably expected to know, that you have a disability.
Razia applied for a job, but she was rejected because the employer knew about her having cancer in the past. The employer was worried that Razia would have to take sick leave if the cancer came back.
Protection from discrimination arising from disability (DAD) applies in England, Scotland and Wales, but not Northern Ireland.
Discrimination arising from disability is when someone with a disability such as cancer is treated unfavourably because of something that happens as a result of their disability. This is different to direct disability discrimination, which is discrimination based on the disability itself.
With discrimination arising from disability you do not need to show that a non-disabled person would have been treated differently. Instead, you have to show that the unfavourable treatment you have experienced is because of something that happened as a result of the disability.
Direct disability discrimination is not justified or considered fair. In some cases, discrimination arising from disability may be justified if your employer can show they acted in a way that was necessary. For example, it might be justified if their actions were for a genuine business need. Deciding what is justified depends on the case. If the employer could have made reasonable adjustments that would have prevented any unfavourable treatment, it will be difficult for them to justify a case of discrimination arising from disability.
To claim discrimination arising from disability, your employer does need to know, or be reasonably expected to know, that you have a disability.
Dafydd missed targets at work because of treatment and fatigue related to his cancer. His boss gave him a bad review because of this. Acting this way towards Dafydd meant he could claim discrimination arising from disability (DAD). It is unlikely that his employer could justify their actions, because reasonable adjustments could have been made. For example, his boss could have set different targets based on the impact fatigue had on Dafydd's work.
Protection from indirect disability discrimination applies in England, Scotland and Wales but not Northern Ireland.
Indirect disability discrimination is when a rule, policy or practice appears to treat all employees the same, but it actually puts employees with a disability at a disadvantage compared with employees who do not have that disability.
An employer may be able to justify their actions if they can show that there is a genuine business need. For example, they may be justified if the rule, policy or practice is necessary and there is not a non-discriminatory option available.
To claim indirect disability discrimination, your employer does not need to know about your disability.
Kathleen's company had to make some people redundant. One way they decided who to make redundant was based on how much sick leave people had taken. Kathleen had taken time off work because of cancer. She was at a disadvantage, because she had taken more sick leave than other colleagues without cancer. This could be considered indirect discrimination, unless the employer could justify their actions.
Protection from harassment because of disability applies in England, Scotland, Wales and Northern Ireland.
Harassment is when someone treats you in a way that makes you feel uncomfortable, insulted, or intimidated. This might include written or spoken comments, or being teased. When this behaviour is related to cancer, you are protected by law.
Rebecca lost her hair after having chemotherapy. Her colleagues teased her about her hair loss. She felt humiliated, but did not feel able to challenge them. This would be considered harassment.
Protection from victimisation applies in England, Scotland and Wales, and partly in Northern Ireland.
Victimisation is when you are treated badly because you have done, or intend to do, something that is protected by law. This is called a protected act. Protected acts include:
- making a complaint about discrimination or harassment under the Equality Act or the Disability Discrimination Act
- helping someone else to make a complaint about discrimination or harassment.
You do not have to be disabled to claim victimisation. You only have to show that you have done something that is considered a protected act.
Under the Equality Act in England, Scotland and Wales, you do not need to show that you have been treated less favourably than someone who has not made a complaint. You only need to show that you were treated badly.
Under the Disability Discrimination Act in Northern Ireland, you also need to show that you have been treated less favourably than someone who has not made a complaint.
You are not protected by this legislation if you do not act honestly and do not believe what you are saying is true. However, you are protected if you give information that is wrong, but which you thought was true at the time.
Jim needed time off from work to go to a chemotherapy appointment. His boss was being difficult about his request. Jim reported the problem to the human resources (HR) manager and said that he believed his manager was discriminating against him. The HR manager told Jim's boss about this discussion. Jim's boss was angry that Jim had spoken to the HR department, so she stopped him from going on a training course. She also gave him a bad review, without a proper reason for doing so.
An employer can be held responsible for how its employees behave during their employment. This is called vicarious liability. An employer could be vicariously liable for acts of discrimination, harassment or victimisation which are done by other employees. An employer can still be vicariously liable if they are unaware that the acts are happening.
An employer could also be vicariously liable for harassment which you experience from other employees because you are a carer.
Paula's husband Mark was having chemotherapy. While Paula was at work, her colleague made offensive comments about Mark having cancer and about his hair loss. These comments made Paula feel very upset and humiliated. She felt unable to deal with work. Paula's employer could be held responsible for this harassment under vicarious liability, unless they can show they took all reasonable steps to prevent the harassment. For example, if they could show they had provided equality training for all staff and made policies to prevent discrimination from happening.