The do’s and don’ts of managing someone with a disability
A recent Macmillan report has stated that one-fifth (18%) of those diagnosed with cancer will suffer negative treatment on their return to work. Although the majority of employers seem to be getting it right, we thought it would be useful to explain an employer’s legal obligations when managing someone with a disability such as someone undergoing cancer treatment.
Employers should be aware that anyone who is diagnosed with cancer is deemed to be disabled for the purposes of the Equality Act 2010. This means an employee will qualify for disability discrimination protection once an employer knows (or ought reasonably to know) about their illness.
Disability discrimination covers a broad range of situations. Direct discrimination occurs where an employer treats an employee less favourably than others because of their disability. An example of this would be where an employer dismisses an employee because of their cancer diagnosis. Although some cancer sufferers may have experienced this treatment, it is more common for unfavourable treatment to occur, not because of the disability itself, but rather because of something connected with the disability – such as sickness absence or failure to meet targets. For this reason, disability discrimination extends to unfavourable treatment arising in consequence of an employee’s disability. “Unfavourable treatment” means that the employee has been put at a disadvantage. Examples include being refused a job, denied a work opportunity or being dismissed.
When an employer is aware that an employee has a disability, it has a duty to consider reasonable adjustments. This means that an employer should take reasonable steps to avoid the employee being put at a disadvantage.
The employer should consult with the employee about the support and adjustments that can be provided during their treatment and on their return to work. Reasonable adjustments could include:
- Allowing flexible working hours, breaks and time off for medical appointments;
- Removing aspects of the job description that may cause the employee difficulties (care will need to be taken not to diminish the substantive role or demote the employee); or
- Allowing a gradual or “phased” return if necessary.
Employees are also protected against disability related harassment. Harassment can be any unwanted physical, verbal or non-verbal conduct that has the purpose of violating a person’s dignity or creating a degrading or offensive environment for them. Examples can include mocking or belittling a person’s disability. If a tribunal finds that this conduct took place in the course of the employee’s employment, the employer could be liable for their staff members’ actions. To reduce the risk of this type of behaviour occurring, it is advisable to set out examples of unacceptable behaviour in the workplace (particularly in relation to discrimination) in the staff handbook and to provide regular equal opportunities training.
Employers should provide reasonable support to an employee suffering from cancer or any other kind of disability. It is important for both the employer and the employee to continue to communicate with each other and to obtain medical advice so that they can fully consider how best to support the employee in the workplace.