Been off work since April 15 endometrial cancer, Brachytherapy finished June 18 still have side effects. Went back too soon for very few shifts one week after. Had to go off again. My csp has ended so just ssp. She is refusing to give me 2nd phased return as said first one didn't work, that means I would go straight back to a 40 hour week, please can you advise
Hope for the future and living the best life I can
Thank you so much for taking the time to contact us about your concerns about returning to work and your manager not giving you the option of another phased return. It is great to hear your hope for the future to live the best life you can. I hope our advice will help you towards this.
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.
I have attached a link our booklet “Your Rights at Work’”, which explains more about the Equality Act and how you are protected in the workplace.
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 could 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. If you feel this applies, it would be advisable to seek further advice.
I suggest you make a request in writing for reasonable adjustments to help you cope with your job. This could include another phased return to work to help you manage the side effects of your cancer treatment. If you have a union rep you could discuss this with them. I have attached a link to Equality Advisory and Support Service template letters that you can use to request reasonable adjustments (titled “Request to make Reasonable Adjustments”). It may help to support your request with medical evidence from your doctor, such as a fit note that lists the adjustments you need. If you are still unable to resolve things, then you may need to raise a grievance and it would be advisable to seek further advice at this stage.
When employees have been off for some time, an employer can refer them to Occupational Health for further guidance. Advice from Occupational Health should help your employer understand whether there are any reasonable adjustments that could help you return to work, which may include a phased return.
An employer does not have to follow the recommendation of either the doctor or Occupational Health and one medical opinion does not outweigh the other. However, the employer would need to demonstrate why they were unable to accommodate the request for a phased return and why it was “unreasonable” for them to do so or their actions could potentially be discriminatory.
I would recommend you check your company’s policies for phased returns. An employer is only legally obligated to pay you for the hours you are working if you are doing less that your full contractual hours unless they have a policy related to phased returns to work and working reduced hours. If so, they should be following their policies in relation to this as it may offer enhanced rights. In some instances, they may pay your full salary while working a phased return to work.
If you are only entitled to be paid for the hours you are working on your phased return rather than your full contractual rate of pay, it may be helpful to know that statutory holiday entitlement is built up (accrued) while an employee is off work sick no matter how long they are off. The statutory holiday entitlement in the UK is 5.6 weeks per year.
Any statutory holiday entitlement that is not used because of illness can be carried over into the next leave year. This is a maximum of 20 days, (pro-rata for part-time employees). If you carry over your statutory holiday this will expire 18 months after the end of the leave year in which it was accrued. Your employer may ask you to use this though on your return to work.
Some people use their accrued holiday entitlement during a phased return if you are only paid for the hours you are working. This means, for example, if you would 3 hours per day on a phased return but are contracted to 7 hours, you would ask your employer to pay you for the 3 hours works and the remained of the day to be paid from your holiday entitlement. It may be worth speaking to your employer about this.
You mentioned your company sick pay have ended and you are now in receipt of Statutory Sick Pay (SSP). This reduction in your pay can result in people feeling they need to return to work before they are fully fit to do so. We have a team of experts in our Money and Work team. They can help with support relating to financial concerns and commitments. If you want to speak to the team, they are available on 0808 808 0000 Monday to Friday 8am till 6pm, by pressing option 2, followed by option 2 followed by option 2. If email would be preferred, please send us an email using the link here.
I hope you find this information helpful to your situation. If you need further support, please do not hesitate to contact us again.
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.
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