"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
I have been diagnosed with cancer and am worried how my employer will react. What are my employment rights whilst undergoing treatment?
You will qualify for disability discrimination protection, however this will only apply once your employer knows (or ought reasonably to know) about your condition. You should therefore inform your boss and HR of your diagnosis and treatment plan as soon as possible to afford you the strongest possible legal protection.
The onus will then be on them to ensure they handle your case sensitively and properly. They should consult you about the support and adjustments that can reasonably be provided in order to minimise the inevitable working disadvantages that you will face in your cancer battle.
Sadly it is not unusual for cancer patients to experience discrimination at work. Anyone who is diagnosed with cancer is deemed to be disabled for the purposes of the Equality Act. This protects against disability discrimination, irrespective of how advanced or severe the disease is. Disability discrimination covers a broad range of situations. Direct disability discrimination occurs where an employer treats an employee less favourably than others because of their disability.
In practice, when unfavourable treatment occurs, usually it is not because of the disability itself. Rather, it is something connected with the disability such as sickness absence or failure to meet targets in light of the effects of the relevant medical condition. Consequently disability discrimination extends to cases where an employee experiences unfavourable treatment at work because of something arising in consequence of their disability. This can include, for example, fatigue, difficulty concentrating or the need to attend regular hospital appointments. “Unfavourable treatment” is also a broad concept which will include dismissal, demotion or an unfavourable performance appraisal. The employer will be liable for disability discrimination unless it can prove its actions were objectively justified, which is often difficult in practice.
Equally important is the duty on your employer to make reasonable adjustments. This arises if an aspect of your workplace or your employer’s policies or practices (whether formal or otherwise) put you at a substantial disadvantage compared to non-disabled people. The employer’s duty is to take reasonable steps to avoid the disadvantage. Whether an adjustment is reasonable depends on factors like the employer’s resources and the extent to which the adjustment is practical and will alleviate the working disadvantage you face. Reasonable adjustments could include, for example, time off for medical appointments, treatment or rehabilitation, the adjustment of your targets, temporarily allocating duties to a colleague, or allowing you to work from home or cut down on business travel. Note, however, that the purpose of reasonable adjustments is to enable the disabled to play a full part at work, despite their condition. Therefore matching the bonus awards of non-disabled colleagues is not a reasonable adjustment, assuming that your productivity and performance are understandably affected by your condition.
You will also be protected against disability related harassment, and victimisation for asserting your rights (for example, to reasonable adjustments).
In conclusion, although not everyone can be as hands on as Jamie Dimon was during his cancer treatment, you should receive every reasonable support from your employer so that you have the best possible chance of continuing your career whilst making a full recovery.
This article was first published in Financial News on 8 August 2016 and is reproduced with their kind permission.
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