Letter of Advice on Employment Law and Cancer Diagnosis
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This letter provides legal advice on relevant legislations under Employment Law of UK applicable in case of cancer diagnosis. It explains the rights and protections for employees with cancer and suggests effective solutions for the employer.
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Letter of Advice Dear Alex, Legal Advice regarding relevant legislations under Employment Law of UK applicable under the matter I am glad to know that being the Director of the Company, you are highly concerned about your employees. In matter of James, who is one of the hard working and long serving employees in your company, you have continued paying him full time sick pay for a certain period of time. I understand that you do not want to worsen things for James by reducing his salary but, the payment to the employee in place of James will incur extra cost for the company. Furthermore, you are concerned about the future situation if, James is diagnosed with cancer because James might most probably not be capable of returning to work in that case. Considering you will not be capable of afford to keep him for the extended period if such circumstances arise, I will suggest you the most effective solutions to resolvethis issue. Before providing you with relevant advice, it is essential to elucidate the meanings of few terms that go hand in hand under the “Equality Act 2010”. All previous discrimination laws have been replaced by new “Disability Discrimination Act (DDA)”and have come under single legislation (CIPD, 2019).The discrimination against people with protected characteristics is proscribed under section 4 of theEquality Act 2010and disability is amongst the protected characters. Under Section 6(1) of the Act, a disabled person is defined as a person with a disability, if he or shehaseitherphysicalormentalinabilityorbothcausingconsiderableandcontinuing adversarial control on his or her capability to perform usual everyday activities(Oury Clark, 2018).Schedule 1 of the Act, which lists those illnesses and diseases which are inevitably
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considered as disability and receives protection under the Act, Cancer is one amongst all the listed diseases and thus, considered as disability. It is also essential to know the reasons behind enlisting cancer under the category of disability in theEquality Act 2010. As per the report from Macmillan Cancer Support, around 3 million people in the UK are suffering from cancer and the number is projected to increase by 3% every year. However, the report disclosed that the survival rate of cancer patients is improving, it has also been estimated by MacMillan that around 25% people in the UK suffers from various disabilities even after cancer treatment, due to which, they could not perform effectively on daily basis(UK Government, 2019).It could affect their personal as well as professional life extensively after they are cured for cancer. Considering various types of discrimination being faced by the workers in England and Wales, which included direct discrimination, indirect discrimination, harassment and victimization, they have been provided with protection from discrimination at workplace under theEquality Act 2010. So, under the Act, the people suffering from cancer have been classified as ‘disabled’ and are protected from being unfavorably treated at workplace as compared to their healthy companions. This provision also suggests that the employer can make reasonable adjustments as they find suit capable of make it easier for the sick people to remain at work. The nature of such adjustments depend from person to person, their conditions, its impact, and could also include changes in the working hours, time off for medical appointments and changing the job roles and responsibilities of the sick to make it easier for them(ICLG, 2019). It is mentioned in the Schedule 1 of the Equality act 2010; an individual who is diagnosed with cancer is classified as ‘Disable’ and receives protection against discriminatory treatment without considering their condition at that time or in future. However, if individual has been diagnosed
with pre-cancerous condition, he or she has the right to claim for disability under this Act. In Lofty v. Hamis, the Employment Appeal Tribunal had to determine the criteria for disability in case of claimant when she was diagnosed with ‘in-situmelanoma’. She was treated for removal ofmalignantcellsaftershewasdeclaredfreeofcancer(UKGovernment,2018).Her employment was already terminated by then because of her absence from work. She claimed to tribunal for disability discrimination and unfair dismissal from job. It was held that she was not disabled and her health stage was ‘pre-cancerous’ and not actually the cancer, so her unfair dismissal was rejected. However, tribunal reversed the findings because all forms of cancers provide protection against discrimination and she had in-situ cancer, which was enough to consider disability as mentioned in theEquality Act 2010. Applying it to the case of James, he has not been diagnosed with cancer yet, and is going through several medical diagnostic tests. According to the report ofCancer Research UK, the condition of the employee belonged to ‘Stage 0’ orin situcancer could not be considered as actual cancer as the cancer cells could not multiply further. Thus, the diagnosis of the claimant was referred to as ‘precancerous’ and not as suffering from cancer. It was concluded by the Employment Tribunal that “Schedule 1 of the Equality Act 2010”did not apply in this case as the claimant was not considered as the disabled person(Macmillan Cancer Support, 2019). Similarly, inGallop v Newport City Council [2013],the court held that the employer should not rely unquestionably on opinion of medical advisor without proper evidences and should not defend disability discrimination by mere reliance on lack of knowledge. So, the case law suggests that you should not take decisions without confirmation of cancer to James and until the period of diagnosis and tests, the company has already hired temporary worker on his place. If the procedures take much time but the employee is worthy for the company, some amount of
salary could be provided if possible, however, even if dismissed for not being capable of work for such long period of time, there will be no unfair dismissal and disability discrimination case against the company because the overall financial burden could not be borne by the company (Macmillan Cancer Support, 2019).Complying with similar condition, inDonelien v Liberata UK Ltd [2018],dismissal for irregular presence and failing to satisfy the nonattendance measures of the company supported the company’s decision and the employee had not received the protection against disability discrimination. In my opinion, considering the fact that James was long working employee of the company, you can also opt for early retirement option in favour of him because he is unable to work for more than 4 weeks now and if cancer will be diagnosed, he might not be capable of working. In that situation, when you were already giving him full salary during sick days, then you should consider him for the provision of ill-health retirement pension on the basis of his full-time salary (ACAS, 2019).As in case ofWilliams v. Trustees of Swansea University Pension and Assurance Scheme and anor [2017],James should not feel that the amount of pension is discriminatory or ‘unfavourable’ because of his ill-health early retirement, which is defined under section 15 of the Equality Act 2010(UK Supreme Court , 2018).The part 1 of the section states that a person is said to have been discriminated against a disabled person if he/she treats the disable person unfavourably due to something that occurs in consequence of the disability of that person. In addition to it, the person discriminating with the people suffering from cancer could not express that the treatment procedures could provide him or her with such reasons(Cancer Research UK, 2019).So, it is suggested that you should dedicatedly play the role of the employer of the company and should show your concern towards one of your employees, who has been highly dedicated and long working employee in your company(UK Government, 2019).He should be
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provided with proper consideration and should be provided with suitable monetary help by the company till his health conditions improve. Even if he will be diagnosed with cancer, he should be considered under early retirement provision due to ill health, so that he could be provided with decent amount of monetary help to overcome his health issues. However, you have been continuously paying him with full salary since his admission in the hospital and various tests are undergoing because of suspicion of cancer. If the diagnosis results come out to be negative, he will be capable of return to work after a certain period of time but, if the results come out be positive, he will have to undergo a long-term treatment process and it will take some time during which, his job role in the company will be hampered. You should ask him to apply for “ill-health early retirement”(IHR) if medical reports say that he will not be capable of discharging his duties in an effective manner in the company, in order to provide them with the benefits of the provisions of early retirement. Under this retirement scheme, it provides for the accretion of benefits because of ultimate salary along with “Career Average Revalued Earnings”(CARE). The scheme under IHR will make James entitled to lump sum and annuity to be payable immediately on the basis of his accrued benefits without actuarial reduction for early receipt. In this process, you should also inform him that the annuity and lump sum will be considered based on his actual salary(Peninsula Business Services Limited, 2019).Along with it, the enhancement in the lump sum as well as annuity will again be payable immediately without actuarial reduction for early receipt. In this context, the enhancement of both lump sum and annuity will be considered on account of his actual salary during retirement as well as the period of supposed pensionable service in case of his continuous employment till hisNormal Pension Datei.e. NPD under IHR scheme(UK Govenrment, 2019).In this way, if you will be capable of convincing him to apply for IHR, he will have monetary help while the company will be capable of
eliminating extra costs due to double payment one to the temporary worker and the other to James due to his ill-health conditions(Wilson, 2018). If you wish to permanently replace James because of his ill-health and least possibility of returning to work, you must know the facts related to ‘Indirect Disability Discrimination’ as the claimant requires proving that the employer has imposed unjustified non-contractual practices or provisions keeping people with disability at difficult position. The issue of discrimination occurs in the organization when disabled are treated unfavourably in the organization due to their incapabilitytoperformthejobbecauseoflong-termillness(CrownCopyright,2019). Considering the ill-health of James, it is expected that it will take a long time if he return to work. The financial costs for his salary and the salary of the temporary worker have to be borne by the company. In case ofO’Brien v Bolton St Catherine’s Academy [2017],the employee was discharged due to continuing sickness absence and it was held to be discrimination due to disability. The Court of Appeal had to settle on whether removal from office amounted to discrimination under the Equality Act following it to be unfair underEmployment Rights Act 1996. Because of failure of employer to provide clear evidences regarding the negative impact of reasonsbehindtheemployee’slong-termabsence,thedismissalamountedtodisability discrimination and unfair on the part of employer because termination of the employee because of continuing sickness absence was not in the category of reasonable responses because it was proved to be discriminatory(Leukaemia Care, 2018).So, it is suggested that you should gather proper evidences to prove your wisdom in permanent replacement of James if he could not be capable of return to work for long(UK Government, 2019). Even after considering all the possible measures, there is probability that James might take legal action against you after his return from the treatment of cancer. You should also be prepared for
the worst as well. If the employee would win the case in the Employment Tribunal, the tribunal will order ‘remedy’ for him. Major remedies available to tribunal are the declaration that the employer has discriminated against the employees suffering from severe health conditions. In addition, the tribunal provides compensation to the employee for the monetary loss being suffered by them for emotional distress and loss of earning. The tribunal will also order the employer to specify the time to be taken to eliminate or reduce the negative impacts of the claims on the individual who suffered. Taking into consideration, the steps being taken by the employment tribunal, you should ensure existence of equal opportunity policy in your company so that discrimination could be eliminated entirely from the organization(Macmillan Cancer Support, 2013).You should ensure effective implementation of the harassment policy in the company. As your company is not a huge institution, you can only appoint a group of minimum two people as review panel to have equal opportunities as well as aggravation or grievance procedures.Youshouldalsoemphasizeonretrainingthestaffconsideringincreasing discrimination against disables. The key points you should keep in mind in these circumstances is that Cancer is one of thethree potentially progressive and serious conditionsas mentioned in the Act, which have been considered as disabilities since they are diagnosed. The more seriousthe condition of the employee is, there is more probability that more reasonable recommended adjustment for the employee will be taken into consideration by the tribunal. Thus, the adjustment requires to be rational and would be measured against the health conditions of the individual(UK Government, 2019).You should also keep it in mind that the law that covers sickness absence for the above mentioned three health conditions is similar to other disabilities. However, instead of ‘disability
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leave’, it will be referred to as ‘sick leave’ and will likely to be considered for reasonable adjustment. There is a significant role of employer because they can support their employee suffering from such health issues and take their condition into concern. The manager on the other hand, has a duty of care towards such employee and should take rational steps to make sure the welfare of the sick employee(ACAS, 2019).The reasonable adjustments should be made for the disabled that would enable them to remain in their job without any requirement of changing the basic nature of their roles in the company. Considering all these facts and points, you should consider the advantageous position for the sick employee and should take necessary steps for his wellbeing. Your Sincerely, Peter James References ACAS, 2019.Conditions automatically treated as a disability - The Equality Act and Cancer, MSandHIV.[Online]Availableat:http://www.acas.org.uk/index.aspx?articleid=5847 [Accessed 24 April 2019]. ACAS, 2019.The Equality Act 2010. [Online] Available at:http://www.acas.org.uk/index.aspx? articleid=3017[Accessed 24 April 2019]. Cancer Research UK, 2019.The Disability Discrimination Act and cancer. [Online] Available at:https://www.cancerresearchuk.org/about-cancer/coping/practically/the-disability- discrimination-act-and-cancer[Accessed 24 April 2019].
CIPD,2019.Employmentlaw.[Online]Availableat: https://www.cipd.co.uk/knowledge/fundamentals/emp-law[Accessed 24 April 2019]. Crown Copyright, 2019.Definition of disability under the Equality Act 2010. [Online] Available at:https://www.gov.uk/definition-of-disability-under-equality-act-2010[Accessed24April 2019]. ICLG, 2019.United Kingdom: Employment & Labour Law 2019. [Online] Available at: https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/united-kingdom [Accessed 24 April 2019]. Leukaemia Care, 2018.Advocacy Toolkit: Discrimination and cancer. [Online] Available at: https://www.leukaemiacare.org.uk/wp-content/uploads/2018/02/discrimination-and-cancer.pdf [Accessed 24 April 2019]. Macmillan Cancer Support, 2013.Your rights at work when you're affected by cancer. [Online] Availableat: https://www.workingwithcancer.co.uk/wp-content/uploads/2013/03/Yourrightsatwork_2013_2.p df[Accessed 24 April 2019]. Macmillan Cancer Support, 2019.Legal rights about work and cancer. [Online] Available at: https://www.macmillan.org.uk/information-and-support/organising/work-and-cancer/if-youre- an-employer/legislation-about-work-and-cancer.html[Accessed 24 April 2019]. Macmillan Cancer Support, 2019.The Equality Act 2010 and cancer – how it affects you. [Online] Available at:https://www.lboro.ac.uk/media/wwwlboroacuk/content/humanresources/ downloads/cancerandEqualityAct2010.pdf[Accessed 24 April 2019]. OuryClark,2018.OverviewofUKEmploymentLaw.[Online]Availableat: https://www.ouryclark.com/resource-library/quick-guides/employment/employment-overview-
of-uk-employment-law.html[Accessed 24 April 2019]. Peninsula Business Services Limited, 2019.Does the Equality Act 2010 differentiate between differentstagesofcancer?[Online]Availableat: https://www.peninsulagrouplimited.com/equality-act-2010-differentiate-different-stages-cancer/ [Accessed 24 April 2019]. UKGovenrment,2019.EqualityAct2010.[Online]Availableat: https://www.legislation.gov.uk/ukpga/2010/15/contents[Accessed 23 April 2019]. UK Government, 2018.Mrs C Lofty v Mr S Hamis t/a First Café: UKEAT/0177/17/JOJ. [Online] Available at:https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-c-lofty-v- mr-s-hamis-ta-first-cafe-ukeat-0177-17-joj[Accessed 25 April 2019]. UK Government, 2019.Contracts of employment and working hours. [Online] Available at: https://www.gov.uk/browse/employing-people/contracts[Accessed 24 April 2019]. UK Government, 2019.Employment Tribunal. [Online] Available at:https://www.gov.uk/courts- tribunals/employment-tribunal[Accessed 23 April 2019]. UKGovernment,2019.EqualityAct2010:guidance.[Online]Availableat: https://www.gov.uk/guidance/equality-act-2010-guidance[Accessed 23 April 2019]. UK Government, 2019.Make a claim to an employment tribunal. [Online] Available at: https://www.gov.uk/employment-tribunals[Accessed 23 April 2019]. UK Supreme Court , 2018.Williams (Appellant) v The Trustees of Swansea University Pension andAssuranceSchemeandanother(Respondents).[Online]Availableat: https://www.supremecourt.uk/cases/uksc-2017-0141.html[Accessed 25 April 2019].
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Wilson, L., 2018.When is cancer protected under the Equality Act 2010?[Online] Available at: http://www.macdonaldoates.co.uk/2018/03/14/cancer-protected-equality-act-2010/[Accessed 24 April 2019].