The Equality Act 2010 protects employees with cancer from being treated unfairly at work. This piece of legislation applies in England, Scotland and Wales. In Northern Ireland those with cancer are protected by the Disability Discrimination Act 1995 (DDA). If you have cancer, the law considers you to be disabled and this legal protection applies even if you no longer need treatment or you move to another employer. Employment legislation also protects job applicants and people who are self-employed.

Too often line managers, and in some cases even HR professionals, are unfamiliar with the legislation protecting employees affected by cancer from discrimination in the workplace. How does this manifest itself? A 2016 survey commissioned by Macmillan reported that 35% of employees surveyed reported negative experiences at work and 18% reported discrimination. It is clear that some employers still have a long way to go, not only in making themselves familiar with the legislation but also in acting within the letter and the spirit of the law.

So, here are some key points:

  • People with cancer are protected against discrimination by the Equality Act (and the DDA in Northern Ireland) from the point of diagnosis and this protection continues even when there is no longer any evidence of the cancer. This legal protection does not cease when active treatment is finished.
  • All those with cancer, whatever type or stage it is, and whatever their medical treatment, are legally classed as disabled and it is unlawful for an employer to treat an employee less favourably because of this.
  • The Equality Act and the DDA cover all areas of employment including: recruitment, training, performance management, promotion and career development opportunities, all terms and conditions of employment, the termination of employment, and even references.
  • If the employer knows - or could reasonably be expected to know - that an employee has cancer, the employer is required to make reasonable adjustments to the workplace or to working practices to make it easier for the employee with cancer to work. This requirement to make reasonable adjustments exists for as long as is deemed ‘reasonable’ – which may be longer, in practice, than set out in most ‘phased return to work’ policies.
  • The law applies from the beginning of employment (there is no qualifying period) and there is no cap on the tribunal award if an employer is found to have discriminated against an employee because he or she has (or had) cancer.
  • The legislation also prevents the victimisation or harassment of employees with cancer.
  • Carers in paid employment are also protected against direct discrimination, discrimination by association with a person with cancer, and harassment at work. Employers do not have to make reasonable adjustments for carers but other legislation provides the right to time off work in some circumstances, or to apply to work flexibly, in order to help employees manage their caring responsibilities.

Some examples of reasonable adjustments may include: providing time off work to attend medical appointments; changing an employee’s duties to remove tasks that cause them problems; allowing an employee for a temporary period to work flexible hours or light duties or to take short breaks.

Discrimination can take many forms, and can be deliberate or unintentional. Examples of discrimination may include: refusing someone a job or withdrawing a job offer from someone who has cancer; not making adjustments to allow an employee to cope with fatigue; not allowing an employee with ‘chemo brain’ extra training or time to complete a task; demoting or performance managing or not promoting an employee because they have or have had cancer; suggesting an employee should retire or stop working or spend more time with their family because of their cancer diagnosis.

In summary, the Equality Act, and the DDA in Northern Ireland, help employees with cancer and their carers lead as normal a life as they can at the most challenging time of their lives. Supporting an employee affected by cancer may also be a challenging experience for the employer but it can be immensely rewarding to support an employee to get through the physical and emotional turmoil of cancer - to the long-term benefit, ultimately, of both the employer and employee.

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If you would like more information on legislation around work and cancer and your responsibilities as an employer please visit here.

Macmillan also produces a booklet on employment rights for employees affected by cancer, which can be downloaded here.

If you haven’t done so already, you may find it useful to sign up for free Macmillan information and resources on work and cancer here, where you can also book Macmillan at Work training for employers on supporting employees with cancer.

Barbara Wilson is Founder of Working with Cancer.