Hello
I'm currently off long term sick, receiving palliative cancer care, I completed 6 cycles of chemo finished end of July, I have secondary cancer lung an pelvis metastases, an my company have just sent me my p45? I send in sick notes ..
We've had on meeting back in August asking me to go on zero hours contract, drop my dental nurse position to Admin, I've been really poorly in an out of hospital, is this legal?
Hello Laryngectomoy life
My name is Linda and I am one of the Work Support Advisers at Macmillan Cancer Support.
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.
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 . If 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.
I would not advise that you sign a new zero hours contract as this could put you in a less favourable position. The Equality Act 2010 states that an employer may not discriminate against a cancer patient or treat them less favourably than any other employee due to their cancer diagnosis.
You do not mention how long you have been off work and whether you feel you may be in a position to return to work in the future.
If the possibility of you returning to work in the foreseeable future is unlikely,then your Employer could potentially look at termination of your Employment on capability. Please see further information on this below .
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.
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
