Published: 16 November 2016
A recent survey by the charity Macmillan has found that 18% of cancer patients face discrimination on their return to work. In many cases, employees are unfairly forced out of their job. This can be particularly distressing for individuals who are looking to restore normality to their lives.
Cancer is automatically classed as a disability for the purposes of discrimination legislation, and is therefore a protected characteristic under the Equality Act 2010. This means employers are subject to a range of duties and responsibilities towards any employee who is diagnosed with cancer, or who has previously had cancer.
An employee may have been discriminated against if they have been treated less favourably than other employees because of their cancer diagnosis. Furthermore, employers can be liable for discrimination if they fail to make ‘reasonable adjustments’ for their employees. This is a wide-ranging duty on employers and can include measures such as reducing working hours, changing duties or making adjustments to the work environment. It is also against the law to harass an employee because of their disability, or treat someone less favourable because of their association with a disabled person, for example if an employee’s partner has cancer.
A successful claim for discrimination can give rise to uncapped compensation. It can therefore significantly increase compensation claims in unfair dismissal cases, where the normal cap would otherwise be a year’s salary (up to £78,962). Discrimination claims may also include an award for injury to feelings that can be between £500 and £30,000.
Advice for Employees
If you are an employee who feels like you have been treated less favourably due to your cancer diagnosis, or feel that your employer has failed to make reasonable adjustments to allow for your symptoms, you should keep a detailed record of any issues that arise. Hold on to any relevant correspondence, and make notes of any meetings you have with management. The more evidence you have, the stronger your case will be!
You can seek to address these issues initially by lodging a formal grievance with your employer. The procedure for doing this will usually be contained in the staff handbook, and if there is no company procedure, you should follow ACAS guidance. If your employer does not respond properly to the grievance you may want to consider tribunal proceedings.
. Depending on how we assess the strength of your case, we may be able to act for you on the basis of a no-win-no-fee damage-based arrangement. If you were to win at an Employment Tribunal, or reach a favourable settlement, our fees would be capped at a percentage of the compensation you received. We can alternatively act on the basis of our normal hourly rates where this would be more appropriate. Other options may include a before the event insurance policy, or funding through trade union membership.
Advice for Employers
Employers need to be aware of their duties towards cancer sufferers. On their return to work, a meeting should be held with the employee to speak about any ongoing symptoms the employee has, how these might affect their work, and how they can reasonably be addressed. Employers should be prepared to be flexible on an ongoing basis.
Employers should also avoid asking questions about a potential new recruit’s health. If the applicant is asked a prohibited question, and subsequently does not get the job, the onus will be on the employer to show that the decision was not made on the grounds of their disability.
If in doubt, employers should consult the Equality and Human Rights Commission’s Statutory code of practice. For further advice, or if you are subject to a claim, do not hesitate to contact us using one of the numbers above. We can offer practical assistance on your recruitment process, your company handbook, and policies in relation to sickness absence and return-to-work procedure. We are also able to provide cost effective advice when defending a Tribunal claim.
Our employment team at Curzon Green Solicitors possesses a wealth of experience in dealing with discrimination matters. We guide employers and employees alike through the Employment Tribunal process, seek to reach a favourable settlement agreement, and offer advice to employers to help minimise the risk of claims. We seek to deliver practical commercial solutions based on a firm understanding of the law and experience of the process.