by Marc Long, senior associate, clarke willmott One of the most difficult cases that an employmen...
by Marc Long, senior associate, clarke willmott
One of the most difficult cases that an employment lawyer can advise upon is when an employee is absent from work due to cancer. Cancer, in its many forms, causes all sorts of distress for the sufferer and for their family but one cannot ignore the fact that employers can be placed into a difficult situation when one of their staff is struck down by this condition.
The original 1995 Disability Discrimination Act failed to sufficiently support sufferers of cancer. The Act was primarily aimed at individuals that had demonstrable physical and mental impairments. With progressive conditions, such as cancer or multiple sclerosis, the individual was placed in a difficult position of having to establish what effects the condition would have in the future before they could claim the benefit of the legislation.
Alive to this difficulty, the Government passed the Disability Discrimination Act 2005. This Act made clear that from 6 December 2005 persons who suffered from cancer, HIV and multiple sclerosis, were deemed to have a disability and hence qualify for protection under the 1995 Act from the point of diagnosis.
Under the amended legislation employers still must not treat disabled staff less favourably than able bodied workers. Moreover, employers are obliged to consider "reasonable adjustments" to physical features of premises or working practices which might unfairly disadvantage the relevant member of staff. Naturally employers must also protect these people from harassment on the grounds of disability.
In a recent case upon which we advised, a member of staff was diagnosed with oesophageal cancer. The worker was very strong willed and was determined to carry on working for as long as possible, notwithstanding that they were suffering symptoms of weight loss and severe fatigue.
It is in these circumstances that an organisation must especially take into account the employee's dignity and feelings. In that particular case, due to the nature of the employee's work and its physically demanding nature, the employer had to make sure that it was not breaching health and safety legislation by continuing to employ the person concerned and it had to consider whether it was exposing other employees to danger of an accident.
Each year approximately 90,000 people of working age are diagnosed with cancer and many organisations have staff on long term sick with this illness. The importance of the issue was recently highlighted by the Chartered Institute of Personnel and Development in its Cancer and Working - Guidelines for Employers, HR and Line Managers.
As soon as an employer becomes aware that an employee has been diagnosed with cancer it is important for the employer to encourage that employee to have a confidential discussion with their HR manager, should they wish to do so.
The importance of dialogue can not be over emphasised and the company should support the employee at what is understandably an emotional time. Likewise employers need consider the impact of an employee's absence on the rest of the staff and ensure that co-workers are not overburdened by their colleague's absence.
If the time comes when the business cannot sustain the individual's employment any longer then any dismissal will need to be prefaced by the employer obtaining medical evidence and following the statutory procedures under the Employment Act 2002. If Permanent Health Insurance is available the HR manager should work closely with the employee to give them the best chance of a successful claim under the policy.
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