Legal Implications of Employee Illness: A Case Study Analysis

Desklib provides past papers and solved assignments for students. This report analyzes a case study on employment law and disability discrimination.

BUSINESS LEGAL ASPECTS OF BUSINESS FINAL ASSIGNMENT

Date: 08.04.2019
To
Mr. Alex
Direct of Wow Shirts
Sub: Regarding Sick Pay of James
Dear Sir,
With due respect, I am writing this letter to address your query regarding the issue you are facing
with James. I can understand from you letter that James is a very loyal and important employee
for you. You have been paying him in full for last four weeks in spite he is not being able to
come to work. Also, you have to employ another person on a temporary basis to complete his
work and also paying him full amount. Overall, it can be said that the issue has some financial
implications on the company. I have also gathered from you letter that the medical reports of
James are suggesting that he might be having an advanced stage of cancer which is indicating he
won’t be able to join anytime soon if at all. Therefore, continuing paying him the sick pay will
hurt the company financially even more. I can gauge from your letter that you are worried about
his health and also do not want to terminate his employment abruptly as he has been a very loyal
and have been working with you for many years. However, the financial condition of the
company is also important for you as it has impact on the rest of the employees too. Hence, you
need to take a decision regarding the situation without any legal repercussions on the company
due to this issue. In the next few paragraphs I will be explaining various laws related to
employment in order to clear your doubt regarding the situation and also help you find a
solution.
Every employee enjoys few employment rights. These rights protect them while working in any
organization. These rights include unfair dismissal, limits on hours in case of statutory sick pay,
freedom to join trade union of their choice, not to be discriminated on any ground and others.

This law basically protects employees against unfair dismissal. The employers are obliged to
follow certain rules before dismissing any employee from work. The first and foremost point is
to honor the contract they have with the employees. If the employer terminates any employee not
following the terms and conditions of the contract can be termed as unfair dismissal.
Following are few Laws related to Employment:
 The Equality Act 2010: The elements covered under this law are age, disability, gender
identity and gender reassignment, Marriage or civil partnership, maternity/ paternity
leaves, Sex, Race, Religion and others. The act was proposed to amalgamate almost 116
various acts under one Act including Equal Pay Act 1970, Disability Protection Act 1995,
Race Relations Act 1976, Sex Discrimination Act 1975 (Cameron et al., 2018). The sole
purpose of this Act was to protect people from harassment, discrimination, victimization
at the workplace. Under this Act the employer are bound to treat every employee equally
without any direct or indirect discrimination on the basis of race, religion, physical and
psychological disability and others. The employees can appeal against their employers if
any of the above discriminations take place through Equal Opportunities Commission,
Commission for Racial Equality or Disability Rights Commission. However, the
employees can directly approach the Employment Tribunal too.
 Employment Relations Act 1999: Under this act employers are bound treat each
employee including part-time workers is entitled to same treatment like others. It also,
includes parental-leaves and family-friendly policies (Countouris, 2016).
 Employment Act 2002: According to this law the employees are entitled to maternal or
paternal leave, adoption leave and pay, fair dispute resolution, equal pay questionnaire
etc. It also includes employee’s rights to get paid during Tribunal leave (Lyddon, 2015).
If any employee is having any dispute outside work they are entitled to leave too. This
law also ensures that the employees like flexible work hours, fixed-term work and
facilities like equal pay and others.
 Public Interest Disclosure Act 1998 (PIDA): This law helps employees to have
immunity against the employers while making an official complaint against them due to
malpractice (Fan, 2016). The employees might feel vulnerable against complaining their

employer to trade unions or other authorities. This Act protects them from any possible
threat from their employer.
In the present situation, it can be noted that James has the possibility to be diagnosed with
Cancer. In that case, it is highly unlikely that he will come back to work anytime soon. Even if
he gets better in few months, it cannot be guaranteed that he will be able to give his 100% to
work. Moreover, it will not be possible to continue his sick pay till he resumes his work as you
also have responsibility towards other employees and company too. I would also like to share
with you that there are three diseases i.e. HIV, Cancer and Multiple Sclerosis, which have been
categorized as potentially life threatening and progressive. They are also considered as
disabilities from the diagnosis point of view (Mahapa, 2018). Depending on the condition of the
patients, the employees need to adjust with their daily routines and also would be counted as
justified by the employment tribunal. The adjustment would vary with each case and with every
individual. However, the law is same for all the diseases including these three diseases. Though,
the term disability leave will be more apt than sick leave in these cases.
According to the Equality Act, it is the responsibility of the employer to adjust according to the
needs of the affected employee. They should not face any kind of disadvantage due to their
condition and should be treated as normal employee as before. They employer also need to make
reasonable adjustments, so the employee can stay in the job. As for the employees having
progressive diseases, the work schedule can be adjusted according to their comfort. The
employee should be aware of the condition of the affected employee and determine the level of
adjustments needed.
Cancer is one of the most progressive diseases. Though it is not always terminal it takes rather
long time to recuperate from the treatment. Here, James is feared to be having Cancer which will
need to make a lot of changes for you and your team, incase you decide to support him and
continue to pay him for his sick leave. However, the plan does not seem practical and has the
possibility of hurting the financial condition of the company massively. So, it is necessary to take
a decision which will be beneficial and practical for both the parties.

There are various categories of discrimination towards disabled people (Schur et al., 2016).
Direct Discrimination- when a person is harassed and treated differently from others because of
their disease
Indirect Discrimination- when the rules and regulations of any organization are adverse to the
person having disability
Harassment- when a person having disability are humiliated, abused and traumatized due to
their disability in an organization.
Victimization- when a disabled person is treated poorly for making an official complaint against
the organization to the concerned authority (Nielsen et al., 2017).
Mrs Lofty V Hamis (2018)
In one of the most recent cases Lofty Vs Hamis, it was seen that the tribunal had given verdict
against the organization for unfair dismissal of Mrs. Lofty. The incident occurred in 2015 when
Mrs. Lofty who was working as a café assistant at the First Café for last 15 years was diagnosed
with pre-cancerous blemish on her face. The biopsy report stated that she had lentigo maligna, a
pre-cancerous lesion which if progressed can become malignant melanoma or skin cancer. She
had gone through two major surgeries to remove cancerous cells and signed from the work.
However, due to other health conditions like anxiety and skin grafting, she could not resume
work till December 2015. Her employer decided to terminate her employment due to failure of
attending meetings to provide enough reasons for her leave of absence.
Mrs. Lofty decided to bring the case to the notice of employment tribunal and claimed that she
was facing unfair dismissal which is the result of disability discrimination by her employer
(Vellani, 2016). The organization however denied the allegation and maintained she was
terminated due to her prolong absence from work without notifying the management. They also
claimed that she was never diagnosed with cancer and disability discrimination charges are not
applicable for her termination. The tribunal accepted Mrs. Lofty’s claim of unfair dismissal but
dismissed the complaint of disability discrimination as they decided Mrs. Lofty was not having
any disability at the time of her termination. The tribunal ruled out the disability discrimination

charges brought by Mrs. Lofty as she was not suffering from cancer. Hence, under the Equality
Act 2010 she was not having any kind of disability.
However, the Employment Appeal Tribunal upheld Mrs. Lofty’s claim and stated that according
to Equality Act 2010 Cancer, HIV infection and Multiple Sclerosis fall under disability.
Therefore, the claimant is not obligated to describe the disability with a long-term negative effect
on her normal routine which states the disability under the Equality Act 2010. The Employment
Appeal Tribunal stated that the claimant was having cancerous cells on top layers of her skin
which was proof enough to prove that she was suffering from early stages of cancer. Thus
making her eligible for being a disabled person. The Employment Appeal Tribunal ruled in favor
of Mrs. Lofty and upheld both her claims being unfairly dismissed by the organization due to
disability discrimination.
According to the reports presented by Macmillan Cancer Support, 1 in every 5 people suffering
from cancer faces discrimination at the workplace after resuming their duties. The report
suggests that 18% people face discrimination from their peers and employer once they go back to
work after being diagnosed with cancer (Macmillan.org.uk. 2019). Also 35% people feel that
they feel negativity or guilty for taking time off due to their illness which results in the
deterioration of their capability to perform. A lot of cancer patients have admitted that they had
to carry on with their work even before getting completely cured. In few cases it has also been
noticed that the patient has to leave the job altogether due to psychological reasons. It can be
seen often that the employer or supervisors are supportive at the beginning but gradually they
change their stance about the situation. The employees then have to compromise on their health
to satisfy their employers and sustain their jobs.
Various cancer support groups have been working towards making employers aware of this kind
of situation and urging them to provide better support to the people suffering from this deadly
disease. The employers have been advised to become more sympathetic and supportive towards
the people who are fighting something which is killing them from inside. They should be having
emotional, psychological, financial support from their employers to stay motivated to fight the
disease. The majority of the cancer patients have admitted that it is important for them to
continue working as it creates a diversion and help them to cope in such depressing situation.

Also it is a known fact that the treatment for this disease is huge and sometimes become
unaffordable for many people. In such situation if they are forced to leave jobs due to
discrimination or they are terminated unfairly, they can become vulnerable both emotionally and
financially. This can lead them to take drastic decisions. There are many ways to handle such
situations. When an employer comes to know that the employee has been diagnosed with cancer,
the first thing they can do to hear their whole story. They should give them a patient hearing.
Sometimes, only a heart-to-heart conversation can give the required emotional support to a
person who has received a shocking news like this. Every employee looks up to their employer.
In this situation, the responsibility of an employer is to show them empathy and ask him what he
needs from them. Most of the time, showing you care is enough for people to fight this monster
called cancer. I have stated earlier that majority of people wants to keep working as it keeps them
distracted also motivates them to fight and survive.
In Jame’s case, we have to be prepared for the worst case scenario. You have to understand the
exact condition of James and gauge the possibility of his return to work to contribute as before.
Also it is necessary to understand how he wants to deal with the situation. If his doctor gives him
permission to join the work after initial treatment, he should feel welcomed in the organization.
Also, it is advisable to create a policy which is beneficial for both the company and James. So, if
he actually gets diagnosed with cancer, the policy should be there to help both the parties. The
policy can be designed to keep in mind that James might need financial support from the
company for longer than anticipated. He will also need time off from work for tests and
chemotherapies. Thus we the company has to adjust with his schedule. The company will also
need to assure him that whatever the outcome may be they will support him both emotionally
and financially. The company will have to show care to motivate him to work with the same
enthusiasm he use to work. The company will also have to encourage him to join cancer support
groups incase he faces difficulty to cope up with the situation.
Last but not the least; I would like to advise you that this is a very delicate situation. It needs to
be handled with maturity to avoid any kind of legal implications on the company. James should
never feel neglected or harassed by the management or colleagues due to his lack of contribution
during his treatment. We have seen a lot of cases where the employee has been victimized by
their colleagues and superiors. This can lead James to take legal steps against the company which

will be much worse for the financial health of the company as in this kind of cases if the tribunal
or other authorities rule in favor of the claimant, the organization can be forced to pay much
bigger compensation than sick pay.
Hope I have been able to explain the various possibilities of this case and also give you required
the solution.
Wishing you best of luck.
Yours Faithfully

Reference:
Cameron, H., Coleman, B., Hervey, T., Rahman, S. and Rostant, P., 2018. Equality Law
Obligations in Higher Education: reasonable adjustments under the Equality Act 2010 in
assessment of students with unseen disabilities. Legal Studies, pp.1-26.
Countouris, N., 2016. The changing law of the employment relationship: comparative analyses
in the European context. Routledge.
Fan, M.D., 2016. Privacy, Public Disclosure, Police Body Cameras: Policy Splits. Ala. L.
Rev., 68, p.395.
Lyddon, D., 2015. The changing pattern of UK strikes, 1964-2014. Employee Relations, 37(6),
pp.733-745.
Macmillan.org.uk. (2019). 1 in 5 people who return to work after cancer face discrimination.
[online] Available at: https://www.macmillan.org.uk/aboutus/news/latest_news/1-in-5-people-
who-return-to-work-after-cancer-face-discrimination.aspx [Accessed 8 Apr. 2019].
Mahapa, M., 2018. Cancer In The Workplace: Rethinking Disability In Zimbabwe. Advances in
Social Sciences Research Journal, 5(3).
Nielsen, M.B., Emberland, J.S. and Knardahl, S., 2017. Workplace bullying as a predictor of
disability retirement: a prospective registry study of Norwegian employees. Journal of
occupational and environmental medicine, 59(7), p.609.
Schur, L., Colella, A. and Adya, M., 2016. Introduction to special issue on people with
disabilities in the workplace.
Vellani, F., 2016. Understanding disability discrimination law through geography. Routledge.