Breast Cancer & Work: A guide to your employment rights
October 2024 is Breast Cancer Awareness Month, over 360,000 people will be diagnosed with breast cancer in 2024. We thought this would be a sensible time to look at the rights and responsibilities of employers and employees where people receive a diagnosis.
Is Breast Cancer a Disability?
In the UK, any form of cancer is deemed a disability under the Equality Act 2010. This is not the position under the Discrimination (Jersey) Law 2013 (the Discrimination Law). The Discrimination Law regards a person as ‘disabled’ if they have one or more long-term physical, mental, intellectual or sensory impairment which can adversely affect their ability to engage or participate in any activity. ‘Long term’ in this context means it has lasted or is expected to last for not less than six months or is expected to last until the end of the person’s life.
A diagnosis of breast cancer will probably fall within this definition. Classing breast cancer as a disability means that those suffering with it will benefit from enhanced protections under the Discrimination Law. If a person suffering from breast cancer loses their job or is treated less favourably than others because of their diagnosis they would be eligible to claim compensation from their employer.
The Discrimination Law covers all areas of employment including:
- Recruitment;
- Terms and conditions of employment, and any benefits;
- Opportunities for promotion and training; and
- Termination of employment.
Informing the Employer?
Generally, a person is not required to disclose their diagnosis. However, if an employer does not know that their employee has received the diagnosis then: (1) it is impossible for the employer to provide the appropriate support; and (2) this lack of knowledge may be a defence to any future claim made by the employee.
Employers are generally only permitted to ask questions about a candidate’s health during the recruitment process if they can demonstrate that it is furthering a legitimate aim of theirs (for instance, if health is relevant to the role being advertised).
If the candidate is offered a job, an employer can then ask for more detailed information about their health (particularly for the provision of healthcare benefits). If a candidate or new employee is directly asked a question regarding their health, it is important to answer truthfully as giving false or incomplete information could have serious repercussions.
Other Employment Rights
The Employment (Jersey) Law 2003 (the Employment Law) protects all employees from being unfairly dismissed. Under the Employment Law if the principal reason for dismissal is a prohibited act under the Discrimination Law then the employee will have been unfairly dismissed.
An employer can still fairly dismiss an employee under the Employment Law. The employer has to be able to demonstrate that the principal reason for the dismissal related to the capability of the employee to perform the work they were employed to do. If an employee has been away from the workplace for a prolonged period of time and there is no foreseeable date on which the employee may be able to return to work then it may be open to an employer to dismiss that employee.
Self-employment
A self-employed individual faced with a diagnosis of breast cancer will obviously worry how their diagnosis and treatment may affect their business. Being self-employed, they will not be entitled to the same support that an employed person has. However, a self-employed person will likely enjoy greater flexibility to decide their working hours and to plan appointments. There may also be statutory benefits that a self-employed person can have access to.
Reasonable Adjustments
The Employment Law grants all employees a right to request changes to their working hours, the times when they are required to work, or the place where they are required to work. Under the Discrimination Law, employers (who are aware that an employee is disabled) are required to make reasonable adjustments for employees placed at a significant disadvantage in the workplace. This could include, for example, granting time off for medical appointments, extra breaks or different working hours.
Whilst every employer is different and will have different policies and procedures, some examples of topics for discussion between employees and employers where an employee has been diagnosed with breast cancer could include:
- Additional time off for appointments;
- Temporary changes to work pattern;
- Adjustments to their job role; and
- Phased return to work.
Giving-up Work
Some people choose to stop working altogether after a diagnosis of breast cancer. This may be for health reasons or because the experience of having breast cancer has made them re-assess their priorities. Giving up work means that an employee gives up any rights and benefits linked to their employment. For example, some employers provide private health insurance or critical illness insurance. Anyone thinking of giving up work should think very carefully about the potential loss of their employment benefits.
Carers
If an employee is caring for someone with breast cancer, they will be entitled to make a request under the Employment Law for flexible working.