People with cancer are now protected under the Equality Act 2010 however, many employers are not meeting their legal obligations to their staff diagnosed with cancer. Linda Abraham explains.
Not everyone who is employed when they are diagnosed with cancer will want, or be able, to return to work after treatment. But many people attach a very strong importance to work and do want to get back to it as soon as they can. Work can provide a sense of self-worth and allows people to focus on their abilities, not just their illness. It can restore normality, stability and social contact. And for many people it is also crucial to regain their income, particularly if they have been on unpaid leave or reduced pay. Macmillan has found that 91% of cancer patients’ households suffer loss of income and/or increased costs as a direct result of cancer.[1]
However, people with cancer often have physical, emotional or practical difficulties at work as a result of their diagnosis or treatment. Cancer and treatment affects everyone differently - some people manage to work during treatment, but most need time off. Recovery times differ, and while one person may go back to their old routine straight away, another may have ongoing effects, and need support to stay in work.
Case study
Alan, 59, from Lancashire was diagnosed with leukaemia in 2008. He said:
‘When I returned to work after treatment no one even asked if I was capable of doing the same as before I’d cancer. It was just expected that I’d do the same hours. It all caught up with me and I started to suffer extreme fatigue and went off sick again. When I felt I was being threatened with losing my job if I couldn’t do a full week, I realised it was time to find out if I had any rights as I didn’t know, and neither did my employer.’
Cancer and the Equality Act
People with cancer are now protected from workplace discrimination under the Equality Act 2010. Prior to that, they were covered by the Disability Discrimination Act (DDA). However, there is a lack of awareness among employers of their legal responsibilities. When surveyed recently, most line managers (87%) had heard of the DDA, but fewer than half were aware that it covered cancer.[2]
When someone is diagnosed with cancer they are automatically categorised as disabled for the purposes of discrimination law. However, fewer than one in five line managers personally consider cancer to be a disability.[1]
What’s new?
Like the DDA, the Equality Act 2010 requires employers to make reasonable adjustments for employees with a disability. But it also includes important new provisions to prevent indirect discrimination, discrimination arising from disability, and discrimination against carers. Macmillan’s new Equality Act and Cancer Guide[3] explains these new forms of discrimination.
The Equality Act also restricts medical questions being asked during the recruitment process. Employers can no longer ask questions about a candidate’s health during the recruitment process, except for the purposes of:
- equality monitoring;
- to conduct positive action;
- to enquire whether reasonable adjustments are needed for the recruitment process; and
- to establish whether the job applicant will be able to carry out a function that is fundamental to the role.
Previously, protection did not extend to people who are mistakenly thought to have a disability. These people, and those who experience discrimination because of their association with a person who has a disability (such as carers), are now protected against both direct discrimination and harassment. For example, it would be unlawful if the partner of someone who has cancer was refused promotion because of concerns that they would be unable to give sufficient attention to the job, due to their caring responsibilities.
Lack of awareness means people with cancer are losing out on support
Many employers are not meeting their legal obligations to their staff diagnosed with cancer. 91% of people who were in work at the point of their diagnosis told their employer about their cancer diagnosis; however, almost half of those say that their employer did not discuss sick pay entitlement, flexible working arrangements or workplace adjustments with them. 13% of people with cancer say they left work or changed jobs because they did not receive enough support from their employer, and 15% say they left work or changed jobs because they were not offered or permitted to work flexible working hours.[4]
Research shows most line managers do not feel equipped to talk to employees with cancer about their statutory rights, and only three in ten line managers could say their organisation had a workplace policy that included guidance on how to support employees with cancer.[1]
What the Equality Act means for your organisation
Discrimination can occur unintentionally. For example, an employer suggesting that a person with cancer would be better off not being promoted because the new job would be too demanding can constitute direct discrimination.
Employers also have a duty to ensure that people with a disability are not at a disadvantage compared to others.
Making reasonable adjustments
The Equality Act 2010 requires employers to make reasonable adjustments for employees with a disability. There is no fixed definition of ‘reasonable’. What is reasonable will depend on all the circumstances, including practicality, cost, and the extent to which business may be disrupted.
Any planned adjustments should be discussed and agreed with the employee or candidate concerned. Reasonable adjustments for someone with cancer might include:
- allowing time off to attend medical appointments;
- modifying a job description to remove tasks that cause particular difficulty – either on a temporary or permanent basis;
- being flexible around working hours, or offering the option to work from home;
- allowing extra breaks to help them cope with fatigue;
- adjusting performance targets to take into account the effect of sick leave/fatigue etc on the employee, or giving them a post with more suitable duties;
- moving a work station, for example to avoid stairs;
- ensuring easy access to premises for someone who is using a wheelchair or crutches;
- providing disabled toilet facilities; and
- allowing a gradual, phased return to work after extended sick leave.
Over 70% of organisations that make workplace adjustments to support people with disabilities consider these easy to implement.[5] Any costs may be fully or partially covered by grants from government schemes such as Access to Work but many adjustments, such as flexible working hours or working from home, have no cost.
Supporting your employees to stay in work can be good for business
Supporting employees with cancer isn’t just good for your employee – it can also be good for business. Benefits include retaining valuable skills and experience, avoiding recruitment and training costs to replace staff, meeting legal obligations (and avoiding the costs of a discrimination claim), and improving staff morale and engagement.
[1] Macmillan Cancer Support (2006). Cancer costs.
[2] YouGov online survey of 2,281 UK line managers. Fieldwork was undertaken between 26 July and 9 August 2010. The survey was carried out online. The figures have been weighted and are regionally representative of all UK adults (aged 18+).
[3] Equality Act and Cancer Guide
[4] YouGov online survey of 1,740 UK adults living with cancer. Fieldwork took place between 26 July-9 August 2010. Survey results are unweighted. Stats quoted here are based on people who have completed treatment for cancer within the last 5 years.
[5] Organisations’ Responses to the Disability Discrimination Act, Simm C, Aston J, Williams C, Hill D, Bellis A, Meager N. Research Report DWPRR 410, Department for Work and Pensions, 2007.
See also: '10 top tips for managing sickness absence' by Victoria Cook in The People Bulletin, 16 June 2010.