09 June, 2023
4th June 2023 marked National Cancer Survivors Day which aims to raise awareness of cancer and how it affects those living and surviving with cancer. According to Cancer Research UK, more than 127,000 people diagnosed with cancer each year are of working age and therefore it is important that employers understand the impact cancer has on those employees and provide any necessary support. Further, employers have legal duties under the Equality Act 2010 (the Act) as cancer is confirmed as a disability for the purposes of the Act and is therefore automatically covered. Even if a person is in remission from cancer, the protection does not end.
Direct discrimination against those with a protected characteristic involves treating a person less favourably because of their protected characteristic. Therefore, direct discrimination could be an employer asking for details of disabilities during the recruitment process, then not employing a person because they have cancer or are in remission from cancer, and therefore may need more time off for treatment, for example.
Indirect discrimination on the other hand is where an employer applies a provision, criterion, or practice (PCPs) in the same way for everyone but is disadvantageous to people with a characteristic. An employer could be indirectly discriminating against a person with a disability, such as cancer by applying a strict absence management policy, as an employee may require additional time off due to sickness and treatment compared to an employee without a disability. An employer should consider making reasonable adjustments, including to their policies such as allowing additional time off before implementing formal sickness management.
Under Section 20 of the Act, where there is a PCP which puts a disabled person at a disadvantage then the employer is under a duty to take reasonable steps to avoid the disadvantage. This duty would only arise where the employee knows of the disability or could have reasonably been expected to know of the disability. Employers should facilitate open lines of communication with employees in all cases, but particularly where they see an employee is taking frequent or prolonged periods of sickness or if they are aware of past disabilities. Reasonable adjustments can also include a change in working patterns to take into account additional breaks, working flexibly from home, adjusting roles and responsibilities, or adjusting physical work environments where appropriate.
Employees may also require support with the wellbeing element of surviving with cancer, not just the physical challenges, and those who are supporting friends and family with cancer may also find their mental wellbeing impacted. Employees may face fears and uncertainty around their future or of their loved ones. If an employee is suffering with their mental health, then it is important for employers to take this seriously. Whilst stress and anxiety are not automatically a disability for the purposes of the Act, such conditions could amount to a disability.
Employers should undertake regular reviews of their policies to ensure they are following best practice with regards to the management of disabilities and mental health in the workplace, and for example ACAS recently updated their guidance on reasonable adjustments for mental health in April 2023.
If you require advice or support on anything raised above, please do not hesitate to contact a member of the Employment Team.
For more information contact Alice McKenna in our Housing & Regeneration department via email or phone on 01254 222373. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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