Cancer and the workplace – know your rights

More than 100,000 people of working age (18-64) are diagnosed with cancer each year in the UK. Encouragingly, however more people are living with and working through cancer. The headlines and statistics about returning to work are not so encouraging.

Last month the case of Terry Foster, a refrigeration engineer with Lymphoma, received widespread news coverage. Mr Foster had at one stage of his cancer been given hours to live, but began to make a surprise recovery and hoped to return to work. However, he was prevented from doing so as his employers dismissed him because they felt he wouldn’t be able to cope with the stress of the job.

For those employees diagnosed with cancer who do return to work, research from Macmillan Cancer Support found that almost one-fifth (18%) face discrimination from employers or colleagues once they are back to work.

“Once you’re back, you’re back.”

The return to work can be isolating, especially if someone has been off for a while and has lost confidence or contact with colleagues. It can also be exhausting. Employees can suffer from fatigue and so need time and support to build up their robustness.  Many employees and their employers simply don’t know what their legal rights and obligations are.

What protection is there for employees with cancer?

Cancer is deemed a protected disability under the Equality Act (“EA”) 2010.

Unlike unfair dismissal, where employees normally have to have 2 years’ service, to gain protection, employees with cancer have automatic protection from discrimination from day 1 of their diagnosis. This protection continues even if their cancer is in remission.

What does this mean in practice?

Basic rights under the Equality Act (“EA”) 2010

• An employer should not discriminate against an employee because of their disability or for a reason relating to their disability. E.g. from recruitment, to the terms and conditions afforded during employment, sick pay and leave to dismissal/ redundancy.
• An employer has a duty to consider any reasonable adjustments to prevent an employee being put at a substantial disadvantage at work because of their cancer. A failure to comply with this duty could be discriminatory.
• What is reasonable? This depends upon the employer’s size and resources, cost and what is practicable and effective. 
• Examples: phased return to work, lighter duties, reducing hours, start and finish times, location e.g. working from home, redeploying, providing training/mentoring, modifying the workplace or equipment etc.

Damages in disability discrimination claims are uncapped. Mr Foster was awarded more than £62,000 in compensation by an employment tribunal. However, its not just the financial cost, but the human cost. Mr Foster just wanted his job back. If his employer had considered what adjustments could have been made to support his return a tribunal could have been avoided.
Help and guidance is available for both employees and employers. Macmillan’s employer’s toolkit is one resource.

Machins Solicitors also offer free 30 minute evening consultations on employment law at our Berkhamsted office, Sumner and Tabor. If you need help or advice or would like to book an appointment please contact Jackie Cuneen on 01582 514389 or [email protected]. We also offer appointments for businesses and individuals at Regus, Breakspear Park in Hemel Hempstead.