Protection against discrimination

If you live in the UK, legislation protects you from discrimination in the workplace. Discrimination happens when you are treated less favourably than another person because of your disability. If you have cancer (or have had it in the past), you are legally classed as disabled.

Discrimination can affect:

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

In England, Scotland and Wales, you are protected under the Equality Act 2010. The Disability Discrimination Act 1995 and its extension, the Disability Discrimination Order of 2006, protect you if you live in Northern Ireland. These acts require your employer to make reasonable adjustments to your workplace and their working practices.

The legislation also protects you from:

  • harassment – when you experience unwanted behaviour due to your disability, which makes you feel degraded or intimidated.
  • victimisation – when you are treated unfairly after making a complaint.

Carers are also protected by some parts of the legislation.

How people with cancer are protected from discrimination

If you have cancer, the law considers you to be disabled. This means you cannot be treated less favourably than others because you have cancer. If you are treated less favourably because you have cancer, this is called discrimination.

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

  • If you live in England, Scotland or Wales, the Equality Act 2010 protects you.
  • If you live in Northern Ireland, the Disability Discrimination Act 1995 (DDA) (as amended) protects you.

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

Carers are also protected from some types of discrimination.


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
  • your terms and conditions of employment, and any benefits
  • opportunities for promotion and training.

The protection doesn’t end when your cancer treatment finishes. If you have been diagnosed with cancer you have legal protection against discrimination, even when there is no longer any evidence of you having cancer.

This means your employer must not treat you less favourably for any reason related to cancer you’ve had in the past. This protection applies even if you no longer need treatment or you move to another employer.


How to check your rights

If you’re unsure about something you are experiencing at work, it’s a good idea to speak to an employment lawyer or an employment organisation. Our organisations database has details.

There are also a number of ways you can check your employment rights for free:

There may be professional groups in your area that can give people affected by cancer advice about employment issues. You can ask your cancer nurse specialist if there are any groups near you.

If you think you are being discriminated against, there are a number of things you can do to help yourself (see below).

Depending on your situation, you may find you need to take more formal action. This might include taking out a formal grievance, and possibly going on to an employment tribunal.

See our booklet on Your rights at work for help with dealing with unresolved problems.


Reasonable adjustments

If you have cancer and are in paid employment, your employer should try to help and support you. Both the Equality Act and the DDA say that your employer has to make reasonable adjustments to your workplace and their working practices.

They are required to do this when the workplace or their working practices mean you are at a ‘substantial disadvantage’ because you have cancer. The disadvantage has to be ‘more than minor or trivial’.

There is no fixed description of what a reasonable adjustment is. But it will depend on things like:

  • how much the adjustment costs
  • how much the adjustment will benefit you
  • how practical it is to make the adjustment
  • the financial and other costs of making the adjustment
  • how much the adjustment will disrupt the employer’s activities.

Your employer doesn’t have to make a reasonable adjustment unless they know (or should reasonably know) that you have cancer. You should be fully consulted and involved in the adjustment process at every stage. It is usually in the interests of both you and your employer to work together to make adjustments which will allow you to continue working.

We have a quick reference guide about reasonable adjustments that you could use to talk with your employer.


Examples of reasonable adjustments

Below are some examples of reasonable adjustments an employer might make if an employee has cancer. Remember that what counts as a reasonable adjustment will always depend on the situation.

  • Giving you time off to go to medical appointments or for rehabilitation.
  • Changing your job description to remove tasks that you would find hard to do because you have cancer, or (temporarily) allocating some of your work to a colleague.
  • Allowing you to work more flexible hours.
  • Giving you extra breaks if you feel very tired.
  • Letting you do just light duties for a temporary period.
  • Changing your performance targets to take into account the effect of any sick leave or treatment side effects, such as fatigue.
  • Moving you to a role with more suitable duties (with your agreement).
  • Changing where you work. For example, they might move you to a ground floor office if you find it difficult to climb stairs.
  • Making sure you can access your work building if you use mobility equipment, such as a wheelchair or crutches.
  • Giving you computer equipment that might help, such as voice-activated software if you can’t type.
  • Letting you work from home.
  • Providing an accessible toilet.
  • Allowing you to return to work gradually after a long period of time off work. This is known as a ‘phased return’.


Examples of disability discrimination

Discrimination connected to cancer can occur in lots of different ways. Whether or not you have been discriminated against will depend on your individual situation. But here are some examples of what could be disability discrimination if you have cancer:

  • An employer not making reasonable adjustments (see above) to help you to do the job. For example, adjustments to help you cope with fatigue.
  • An employer giving you a 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 in favour of someone with less experience or ability to do the job because of a reason related to having cancer.
  • Being chosen for redundancy for a reason related to having cancer. For example, if you have used more sick leave than your colleagues (because you have cancer or because of treatment related to cancer).
  • Not being given a job because you have cancer.
  • Not being allowed time off for medical appointments connected to having cancer.
  • Having a bad appraisal or performance review for a reason connected to having cancer. For example, if you have had a lot of sick leave or tiredness and so haven’t met targets or objectives.
  • An employer making it difficult for you to get sick pay that you’re entitled to.
  • Harassment (see below), which is when an employer or colleague bullies, intimidates, insults you or makes you feel uncomfortable because you have cancer, so you feel you can’t stay in your job. For example, this could include being teased, laughed at or whispered about by colleagues because of hair loss.
  • Victimisation (see below), which is when you are treated unfairly because you complained about discrimination, or helped someone make a complaint, or because your employer thinks you might make a complaint.

I started my new role and in the first week I told my employers that I’d had cancer, because I needed time off for medical appointments. But they were shocked – and from that point on my job was made very difficult. They weren’t understanding or supportive. I was made to work long hours, and was given impossible deadlines and an unfair contract.

Cathy


Types of disability discrimination

Employment legislation covers different 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 (see above).

Below, we’ll explain these different types and give you some examples of discrimination in the workplace.

Nobody with cancer should have to fight their employers at the same time. The cancer is hard enough on its own.

Cathy


Direct disability discrimination

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

Direct disability discrimination is when, because of your disability, you receive 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, your employer might suggest that being promoted would be too demanding for you because you have cancer. But it would be acceptable for your employer to have a sensitive conversation with you about the impact of a new job on your health.

Some problems may happen because of misunderstandings about cancer. Your employer may assume that you can’t do the same job any more. Or they may assume that you might be less committed to work because of your illness or that the stress of having cancer makes you less suitable 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 at work.

Example: Razia applied for a job but she was rejected because the employer knew that she had 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 your employer can show it is meant to help achieve an aim of the organisation in a fair and balanced way. Your employer must also have considered any reasonable adjustments.

Unlike DAD, your employer does not need to know about your disability to indirectly discriminate against you.

Example: 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 you experience unwanted behaviour related to your disability, which causes you to feel intimidated, degraded or offended.

Example: Rebecca lost her hair after chemotherapy. Her colleagues teased 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

Protection from victimisation applies in England, Scotland and Wales, and partly in Northern Ireland.

Victimisation is when you are treated unfairly because you have done, or will do (or someone thinks you have done or will do), something that is protected by law. This includes making a complaint about discrimination or harassment under the Equality Act or the DDA.

It also applies if you have helped someone else to make a complaint and are treated badly. And it applies if your employer thinks you may make a complaint or help someone to make one. This is the case whether you are disabled or not.

In England, Scotland and Wales, under the Equality Act you only need to show you were treated unfavourably and you must genuinely believe this is true.

In Northern Ireland, under the DDA you also need to prove that you have been treated less favourably than someone who has not made a complaint.

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

Example: 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 you experience from other employees because you have cancer.

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

Example: 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.


Questions about your health during recruitment

England, Scotland and Wales

Generally, when you apply for a job, an employer can only ask questions about your health before they offer you a job in certain circumstances. This could be to:

  • make sure they are not discriminating against anyone in their recruitment process
  • make sure they recruit people from a range of different groups, such as people with disabilities or people from ethnic minorities – this is called carrying out positive action
  • check whether you need any reasonable adjustments for the recruitment process – for example, if you need to have the interview in a ground floor room
  • find out whether you will be able to do a task that is a main part of the job. For example, if a job requires a lot of heavy lifting, they have the right to find out if a health condition could stop you from doing that task.

An employer can ask you about your health after you have been offered the job. But if an employer takes away a job offer because of what you have told them about your health, they have to have a reason for doing it which does not discriminate against you. They also have to think about any reasonable adjustments they could make to allow you to do the job (see above).

Northern Ireland

An employer can ask you about your health when you apply for a job. But they still cannot discriminate against you because of your disability when you apply for a job.

An employer also has to think about any reasonable adjustments they could make to allow you to do the job (see above).

Back to If you are an employee with cancer

Making decisions about work

Deciding whether to work during cancer treatment can be very difficult. It depends very much on individual circumstances.

Coping with side effects

Cancer treatment can cause different side effects. They can have an impact on your capacity to work.

Making treatment decisions

When you’re self-employed, you may have particular questions about treatment decisions and how they could impact on your work.