Rachel Dineley: Employers must be mindful of their legal duties on disability

Any employer of any significant size is bound, from time to time, to have to deal with the consequences of an employee’s cancer diagnosis and treatment, not least because research indicates that one in three of us will develop some form of cancer in the course of our lives, according to Macmillan Cancer Support.

Rachel Dineley

There is no obligation on a job candidate or employee to disclose to an employer that they have, or have had, cancer. Employers should only ask health-related questions of job candidates, before offering them a role, to the extent that it is necessary to establish that they are able to undertake the functions intrinsic to the role for which they are being hired, or reasonable adjustment is required (consistent with section 60 of the Equality Act 2010).  

Pre-employment health questionnaires are still useful, provided they are brief and  address properly what is pertinent to the job in question.

At all times, employers should avoid making any assumptions with regard to a particular type of cancer or to how any particular employee will cope with it. Without invading an employee’s privacy, it is usually both practical and appropriate for an employer to discuss in confidence how a candidate or employee would wish to deal with the situation, to the extent that their condition affects their output.

Employers must not discriminate

In addition to the duty to provide a healthy and safe place to work, employers must not discriminate against any job candidate, employee or other worker in relation to their disability. Disability is a protected characteristic under the Equality Act, and under Schedule 1, cancer is to be treated as a disability even where it may not, at any particular stage, have a substantial long-term adverse effect on an employee’s ability to undertake normal day-to-day activities.

Together with other protected characteristics, such as gender and race, it is unlawful for an employer to discriminate either directly or indirectly because of an employee’s disability.  

Also, under section 15 of the Act, an employer will unlawfully discriminate against an employee (be they a candidate, employee or other worker) if they treat them unfavourably because of something arising in consequence of their disability, or if they cannot show that the treatment is a proportionate means of achieving a legitimate aim. 

This defence is commonly known as the ‘objective justification’ test. The onus is on the employer not only to demonstrate that what they are seeking to achieve is legitimate, but also that the particular measure they adopt is both appropriate and necessary in pursuit of that objective.

Duty to make reasonable adjustments

Most employers are aware of their duty to make reasonable adjustments under sections 20- 22 of the Equality Act.

There are three principal limbs to this obligation:

  • Where a provision, criterion or practice puts the disabled employee at a particular disadvantage in relation to a relevant matter, when compared with employees who are not disabled, the employer should take such steps as are reasonable to avoid the disadvantage.
  • Similarly, where a physical feature puts the disabled employee at a substantial disadvantage, when compared with staff who are not disabled, the employer should take reasonable steps to avoid the disadvantage.
  • Where the disabled employee would, but for the provision of an auxiliary aid, be put at a substantial disadvantage, when compared to staff who are not disabled, the employer should take reasonable steps to provide that aid.

A disabled employee should not be required to bear any associated cost. An employer’s failure to comply with any of these requirements is a failure to comply with the duty to make reasonable adjustments and constitutes discrimination. A disabled employee may bring a claim in the Employment Tribunal to seek a remedy in the event of any form of disability discrimination.

Employee views

Whether, and to what extent, it is necessary for an employer to make any reasonable adjustments will depend not only on the nature of the illness itself and the medical treatment prescribed, but also on how an employee views their condition, how they respond to their treatment and how they wish to be treated as a whole.

Although the law properly protects employees with cancer, not least in the light of historic prejudice against them, many workers do not see themselves as in any way disabled, and do not want to be treated any differently to their colleagues.

In some instances, employees will need to take relatively little sick leave to undergo treatment, and they will want to keep the reasons for their absence confidential. In other instances, the cause of absence may be all too obvious because the employee has to undergo chemotherapy, which significantly alters their appearance, including losing their hair. 

It is important for employers to understand at the outset an employee’s expected course of treatment, so they can cater for the adjustments the employee may need with regard to working arrangements, and facilitate and support the employee while they undergo treatment.

Risk of infection

In some instances, the employee may, by reason of their job, have to be absent while having chemotherapy. For example, staff in the teaching and nursing professions may find they have to absent themselves from work because of the significant risk of infection arising in their work. Chemotherapy depresses the immune system and renders the employee particularly vulnerable to infection, which could have an adverse impact on their treatment and recovery.

Whatever adjustments an employer must make, they may be temporary. Maintaining  a dialogue with the employee, so they feel able to confide in the employer at every stage of their illness, is key.

Employers may need to seek a medical report, with the employee’s written consent, if the prognosis and/or course of treatment and its implications are not clear.

Where an employee’s condition is so serious that they need to take sick leave and are unlikely ever to return to work, other considerations arise. For example, there is no obligation for an employer to give affected staff more generous sick pay than the employee is statutorily and contractually entitled to, and it is not generally a ‘reasonable adjustment’ to do so.

However, a compassionate employer will wish to consider what is appropriate, and this may include a review of insurance and other employee benefits that may be available, not only for the employee but for their dependants in some circumstances. 

Carer support 

It is a common misconception that an employee who is caring for a cancer patient has the same right to have reasonable adjustments made to their working arrangements. They do not. However, if the employee is a carer of a child or adult with cancer, and falls within the Flexible Working Regulations of 2002, they can request a change in their working pattern to accommodate their caring responsibilities.

As this would entail a permanent change in their terms and conditions, subject to making any application for further variation, made after 12 months, strict adherence to the regulations may be unhelpful.

A supportive and caring employer may be able to accommodate temporary changes, after appropriate consultation and planning. This may entail dialogue with the carer’s colleagues, where they will be affected. 

It is worth employers noting that in 2014 the government will amend the right to request flexible working, making it available to all employees with 26 weeks’ service. The statutory procedure will go and employers will have to consider ‘reasonably’ any requests received.

If a carer is treated less favourably than other employees with caring responsibilities, because the child or adult for whom they care has a disability, that will amount to unlawful direct disability discrimination, but such cases are rare.

Confidential consultation, handled competently and consistently, will help good employers manage these practical problems, and protect the good reputation they deserve.


Rachel Dineley is an employment partner at law firm DAC Beachcroft

 

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