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.
At all times, employers should avoid making any assumptions with respect either 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 [recruitment] candidate or an employee would wish to deal with the situation, to the extent that their condition impacts on their ability to fulfil their role .
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 individual ’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 or candidate’s disability.
Nor may they treat the individual unfavourably because of something arising from the disability, without objective justification.
Employers have a duty to make various reasonable adjustments to reduce or avoid substantial disadvantage, attributable to the disability of the affected employee or candidate, under sections 20- 22 of the Act.
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.
Rachel Dineley is an employment partner at law firm DAC Beachcroft