Dealing with a long-term illnesses can be an incredibly difficult situation for anyone to face. As an employer, you want to remain supportive and sympathetic to the employee by approaching the situation in a way which demonstrates that you have considered their rights.
The Equality Act 2010 provides rights for employees not to be subjected to less favourable treatment because of a protected characteristic, one of which is disability. This means that employees are protected from dismissal, or other detrimental treatment because of a condition which meets the statutory definition of a disability. However, there are some exceptions to this.
In order for someone to be classed as disabled under the Act:
- the person must have an impairment that is either physical or mental
- the impairment must have adverse effects which are substantial
- the substantial adverse effects must be long-term, and
- the long-term substantial adverse effects must be effects on normal day-to-day activities
The above requirements seem to imply that someone must experience the effects of their condition to the extent that it affects their everyday activities.
However, there are some conditions which qualify as a disability under the Act even though they do not necessarily meet all the requirements above. People with cancer, HIV infection and multiple sclerosis are, by law, to be considered as having a disability for the purposes of the protection under the Equality Act from the point of diagnosis. This means that there is no need for people suffering from these conditions to be experiencing effects on their day-to-day activities; protection applies before this happens.
Therefore, from the point of diagnosis, those with cancer, HIV infection and multiple sclerosis are protected from less favourable treatment because of their condition.
This will mean that employers have a duty to make reasonable adjustments to their role in order to help remove the barriers that the individual’s condition creates. Reasonable adjustments are not simply in relation to physical aspects of the job, but may also include amendments to policies that are applied to the individual’s employment.
A Court of Appeal case recently gave guidance in this area. In Griffiths vs Department for Work and Pensions, the Court held that it was not a reasonable adjustment for an employer to continually extend trigger points for disciplinary action because of sickness absence levels for an employee with a disability. However, disciplinary action for disability related absences may actually constitute ‘discrimination arising from a disability’, which is another claim an employee can make to tribunal.
Including disability-related absences from the point of diagnosis for individuals with cancer, HIV infection and multiple sclerosis in decisions for disciplinary action is therefore likely to be an act of disability discrimination, even before their condition is considered as having a substantial adverse effect on their everyday activities.
Alan Price is employment law director of Peninsula.