It is a shocking reality that one in two of us are likely to get cancer at some stage in our lives. The good news is that survival rates are improving, but with people working to older ages, this has increasingly become an occupational concern.
The charity Macmillan has found that approximately 100,000 people of working age are diagnosed with cancer every year in the UK. However there are still issues surrounding cancer and employment as employees may face discrimination in their place of work. Survey data also shows that more than half of those diagnosed either have to give up work, change their role or amend their hours. The majority want to return to work when the time is right, although of those that do one in three consider that they have suffered from discriminatory treatment at work.
Cancer is a debilitating disease which impacts people physically and emotionally in significant ways, often over a long period of time. Even after treatment has ended symptoms can continue in the long term including fatigue, depression, pain and reduced mobility.
Some may sadly have to give up work but for others having the opportunity to return to work after treatment is extremely important for many reasons. It’s not just for financial reasons but because work is so central to our identity, well-being and self-esteem.
For our clients facing the most difficult times of their life with cancer and employment, I have highlighted below the common issues we advise on at didlaw.
I am an employee with cancer, do I have any special rights?
Yes, you will have protections under the Equality Act 2010 as cancer is automatically regarded as a disability. Therefore, you should not suffer from less favourable treatment as a result of your cancer. You should feel supported and not feel negative treatment when you raise your concerns. There should be no impact on your opportunities such as training and promotion and you should not feel undermined or side-lined.
Should my employer support me through my cancer journey?
Yes. An employer who knows about your cancer diagnosis also has an obligation to make ‘reasonable adjustments’ to support you in your role and during your time off for treatment. Request a referral to occupational health so that your ability to work and the support you require can be assessed. Once this report is received your employer should invite you to sit down with them to discuss the report’s recommendations, seek your views and address how they can support your return to work. The duty to make reasonable adjustments is not absolute. This means they don’t have to do everything possible to support you. However, in view of the size and resources of the organisation and in consideration of your needs, this should be reasonable.
I am going to need significant periods of sick leave – what are my rights?
For many with cancer, a period of sick leave will be required. Sometimes this may be short term, but often it is long-term or involves frequent absences for periods of treatment or sickness. Therefore it is hoped that your employer will show a lot of empathy and flexibility to support you on your cancer journey. They should have trained managers or HR professionals to support you and manage your absence reasonably and sensitively.
What pay will I receive when off sick?
Some employers will exercise discretion in relation to pay or they may offer company sick pay which will be outlined in your employment contract or in a policy in the staff handbook. Employees have the basic right to be paid statutory sick pay for a period of 28 weeks. The current rate is £96.35 per week. If you remain off work long term you may be eligible for corporate income protection benefits and some employees may be eligible for a workplace ill-health retirement scheme if returning to work proves to be unlikely. Talk to your employer about your options.
After a period of treatment, I am ready to return to work. What next?
If you have been off work for weeks or months, your employer should provide specialist support with your return to work in a number of ways. First occupational health should be engaged to provide an assessment on your needs when returning to work and this should open an honest dialogue with your employer. As your needs change over the months, you should be referred to occupational health again. A phased return to work should be offered to suit you in terms of days, hours and revised expectations while you are settling back in and returning to better health.
Could I lose my job?
Employees should not be disciplined or dismissed because they have cancer. However, at some stage it may be lawful for an employer to terminate the employment of an employee who is off work on sickness absence long term. This will always be subject to following procedures, only where a return to work is not expected in the medium term and that particular employer cannot reasonably be expected to wait any longer. Whether such a dismissal is lawful will very much vary case by case. If your employment is under threat speak to a lawyer.
What if there is a restructure or redundancies at work?
Your employer can still carry out a restructure or redundancy exercise at work while you are ill, and it is still possible that your job may be at risk. However, the employer’s procedures and process should not be discriminatory, and you should not be singled out. They should still inform you and offer to consult with you, subject to you being well enough to engage in the process. You should only be earmarked as at risk of redundancy if your role falls within the selection pool of impacted employees. Your employer should also use selection criteria which does not affect you negatively in terms of your disability, such as recent absences or inability to perform or meet targets while you have been unwell. Reasonable adjustments should also be made to support you through the process.
What if I still have concerns?
If you become concerned about job security, lack of support or discriminatory treatment whilst on your cancer journey you may have claims for disability discrimination or unfair dismissal. You are advised to seek advice from charities, trade unions, support groups or solicitors regarding cancer and employment rights. As our name indicates, at didlaw we are specialist Disability, Illness and Discrimination lawyers and are here to help. Call us today for a free initial call. You are not alone.
This blog is by Caroline Oliver, Senior Solicitor at Didlaw
