Dismissed from work

Hello Busybee

Thank you for your question, I am so sorry to hear about what you have been through with your health and with your job.

My name is Polly and I am a work support advisor on the Macmillan support line. This question raises several issues.

If you have a cancer diagnosis you do not need to tell the perspective employer during the recruitment process and if you receive an offer of a job then the employer should not withdraw the offer once you disclose your disability. Your employer has followed good practice in this regard.

It is distressing when you are expecting hospital treatment, it is an emotional time. Where accuracy is important in a role, for example dispensing medication in a chemist then you were being responsible by using sick leave because of the risk of errors. However, it is important to follow the company sickness absence policy. We would expect an employer to ask or remind an employee when the fit note is due to expire and to keep in touch when an employee is on sick leave. The employer should also be understanding if you must protect yourself from COVID-19 in the days before you are due to be admitted to hospital. Meetings do not need to be conducted face to face they can be completed by phone or via a meeting app.

When an employee is on sick leave it is usual for the employer to ask, “When do you think you're coming back?”

From the employer’s perspective they need to manage your workload while you are away. We always suggest that an employee keeps messages positive about the wish to return to work. For example, an employee can say. “I am looking forward to coming back to work following my surgery, I will keep you up to date about when this will be”. Many cancer patients feel under pressure when this question is raised because they are struggling with treatment and they cannot give an answer.

In your situation you have under two years’ service so you cannot claim unfair dismissal. I suggest you check the paperwork that you received when you started work. What does it say about probation? We would expect an employer to extend this probation period rather than dismiss if the employee is going through cancer treatment, this would be a reasonable adjustment. You also need to check the notice period in your contract because under the law you are entitled to one weeks’ notice if you have less than two years’ service, however if your contract says you are entitled to a months’ notice then you may be able to include this in an employment tribunal claim. This might be wrongful dismissal.

Even though you cannot claim unfair dismissal you are protected from disability discrimination under the Equality Act 2010 or the Disability Discrimination Act 1996 if you live in Northern Ireland. Please have a look at our booklet Your rights at work when you are affected by cancer .

If you feel that this is disability discrimination, then you need to act quickly. The time limit for taking a claim for discrimination to the employment tribunal is three months (less a day) from the date of dismissal. The first step is to start early conciliation with ACAS. Once you start early conciliation this puts the deadline for the claim form to the employment tribunal on hold. The clock will start ticking again once early conciliation is finished. If you live in Northern Ireland you need to contact the Labour Relations Agency

What help is available for someone taking employment tribunal action?

If you are in a Trade Union, then you need to contact them as soon as possible.

If not, please review the information on the Citizens Advice website . Please remember that legal aid is available to those who have suffered discrimination. You can ring them on Telephone: 0345 345 4 345 to check whether you are eligible, or you can use their online calculator Legal Aid  . There are different provisions for legal aid in Scotland and Northern Ireland. It is also worth checking any insurance policies you have because you may have legal cover included in the policy. This could mean that you could access a solicitor free of charge to help you with your claim.

To summarise you may have a claim for wrongful dismissal if the employer did not give you the correct notice as stated in your contract plus a claim for disability discrimination if they suspected you had cancer.