Worried about dismissal for absence triggers - what protections do I have?

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Hi,

I was diagnosed with Myelofibrosis in October 2024, I am currently not having any treatment and I'm on watch and wait. I have also been diagnosed with osteoarthritis in my knees and potentially in my back (I am awaiting MRI Scan results). Last year at the end of August I was admitted to hospital for a very bad case of infected gastroenteritis. Due to me being so poorly my recovery was very slow and I had to take time off work and wasn't able to go back to work till the end of October. A week after returning I was diagnosed with the cancer.

For context I am a teaching assistant in a primary school. Work have been very good with me and made any reasonable adjustments that I have needed and I have reduced my hours to 17.5 a week as with the fatigue I physically can't do a full day.

Unfortunately over the last 12 months I have had to have time off due to stomach issues that can't be either confirmed or denied that is related to the cancer. I also had 3 days off two weeks ago as my knee gave way due to the osteoarthritis and it was painful to walk on.

Myself and the headteacher have had fortnightly health check in meetings to see how I'm coping and if there is anything else that can be done to assist me. Unfortunately I have also had to have regular attendance meetings as I've had so much time off over the last 12 months, I've never been issued with a warning either formal or written, however at my  meeting last week my headteacher has said she needs to seek advise as I've hit triggers due to my absence, this could potentially lead to me going to panel to discuss my future. My headteacher was very reluctant to make this decision but feels that she has no choice.

I am concerned as I don't know what my future holds and I'm worried that my job my be terminated, I know that cancer is classed as a disability and I'm covered by the disability act but I'm unsure how I'm protected or what I'm entitled to if my job was to be terminated.

Any advise would be very grateful.

  • Hi Niss

    My name is Linda and I am a Work Support Adviser on our National Support Line. I can advise on your Rights at Work if you have been affected by Cancer.

    I am sorry to hear about your Myelofibrosis diagnosis as well as your other medical conditions. I appreciate this must be a challenging time for you.

    As you have a cancer diagnosis you are considered to have a disability under the Equality Act 2010 or Disability Discrimination Act 1995 (Northern Ireland). This means your employer should not discriminate against you because of your cancer. Your employer is also under a duty to make reasonable adjustments to help you at work. This protection is lifelong and does not depend on an active cancer diagnosis.

     

    Reasonable adjustments remove or minimise disadvantages experienced by disabled people. Employers must make reasonable adjustments to ensure disabled people are not disadvantaged in the workplace. They should also make sure policies and practices do not put disabled people at a disadvantage.

    You can request a reasonable adjustment in the workplace, providing you can relate it back to your cancer. Your employer has a duty to consider all reasonable adjustments and a failure to do so could suggest disability discrimination. If your employer rejects a reasonable adjustment request they need to be able to demonstrate why it is “unreasonable” for them to accommodate or it could suggest that you are being treated less favourably as a disabled person. T

     

    In order to be protected from direct discrimination or to ask for reasonable adjustments at work your employer should be aware of your cancer diagnosis.

     

    You can ask your Employer, as a Reasonable Adjustment, to disregard any cancer related sickness absence from any trigger points in the company sickness and absence policy.

    You may need to ask your medical team if any of your other medical conditions are considered to be a disability under the Equality Act. As a Cancer patient you have protection under the Equality Act 2010. The definition of a disabled worker (as defined by the Act) is someone who has a physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day to day activities. A range of physical and mental health issues impairments may be included, Long term is defined as expected to last at least 12 months or for the rest of a person’s life. Conditions which automatically meet the definition of disability from the point of diagnosis are cancer, multiple sclerosis and HIV.

    The act  prohibits discrimination against disabled job applicants, employees and contractors. It applies to recruitment, promotion, employee benefits, disciplinary meetings, dismissal, harassment and victimisation.

    An Employer has the right to put their own sickness and absence policy in place which will outline when you may hit absence triggers and can be called into a formal meeting to discuss the level of your absence . Of you are a member of a Trade Union they can represent you in such a meeting. If you are not in a Trade Union you have the right to be accompanied by a work colleague.

    Your Employer may also suggest a referral to Occupational Health for you to be assessed by a medical professional regarding your capability to work or not. Occupational Health can also make recommendations in their report for any further reasonable adjustments to be made to support you at work.

    You can ask your Employer, as a Reasonable Adjustment, to disregard any cancer related sickness absence from any trigger points in the company sickness and absence policy.

    You may need to ask your medical team if any of your other medical conditions are considered to be a disability under the Equality Act. As a Cancer patient you have protection under the Equality Act 2010. The definition of a disabled worker (as defined by the Act) is someone who has a physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day to day activities. A range of physical and mental health issues impairments may be included, Long term is defined as expected to last at least 12 months or for the rest of a person’s life. Conditions which automatically meet the definition of disability from the point of diagnosis are cancer, multiple sclerosis and HIV.

    The act  prohibits discrimination against disabled job applicants, employees and contractors. It applies to recruitment, promotion, employee benefits, disciplinary meetings, dismissal, harassment and victimisation.

     

     

    Dismissal for sickness absence

    An employer can terminate employment if the employee is not capable of doing their job but they must first follow a fair procedure. This includes looking at the possibility of returning to work within a reasonable time frame. They should also consider any reasonable adjustments that would enable the employee to return to work.

    If an employee cannot give a reasonable expected return date after long term sickness absence or would be unable to carry out their role with any reasonable adjustments, then the dismissal can be deemed as fair. This may also apply even though the employee has a disability.

    Wrongful dismissal

    • An employee has been dismissed by an employer and it is in breach of their terms of contract. The right to take this further to an employment tribunal is not dependent on how long they have worked for the employer.

    Examples of this would include:

    • The employer doesn’t pay the correct notice period or pay in lieu of notice
    • Doesn’t pay the right amount
    • Failing to follow a contractual disciplinary policy

    https://www.acas.org.uk/dismissals/unfair-dismissal

     

    On the Macmillan Support Line we do have a team of Welfare Rights Advisers and they will be able to advise you whether there is any financial support you can access if your income was to change . They can be contacted on 0808 808 0000 or through our website. 

     

    https://www.macmillan.org.uk/cancer-information-and-support/get-help/financial-and-work/welfare-rights-advice

    I hope this information have been helpful but please do not hesitate to get back in touch with us if you need further support.

    Kind Regards

     

    Linda

    Work Support Advisor

    Remember you can also speak with the Macmillan Support Line team of experts. Phone free on 0808 808 0000 (7 days a week, 8am-8pm) or by email