Conditions automatically treated as a disability - The Equality Act and Cancer, MS and HIV
When someone is diagnosed with a condition, which may be progressive or life threatening, they might worry about whether or not to tell their employer. Equally an employer (or colleagues) may want to provide support, but worry about doing or saying the wrong thing. An employer can often be an important source of support for the employee trying to manage their condition so it is generally a good idea to discuss issues with them.
The Equality Act can also provide protection for certain illnesses when they are established as a disability.
Under the Equality Act a person is disabled if they have 'a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities'.
However, there are exceptions to this definition. These exceptions include certain medical diagnoses, progressive and life-threatening conditions. A progressive condition is one that gets worse over time, such as muscular dystrophy and motor neurone disease. Employees with a progressive condition can be classed as disabled.
Employees will automatically be protected against discrimination under the Equality Act 2010 from the day they are diagnosed if they have Cancer, HIV or Multiple Sclerosis. However, many people with these conditions can work and have an active and fulfilling career.
- Three potentially progressive and life-threatening conditions - Cancer, HIV and Multiple Sclerosis - are regarded as disabilities from the point of diagnosis.
- The more serious the condition the more likely it may be that a suggested adjustment for the employee would be seen as reasonable by an employment tribunal. The adjustment, though, would need to be reasonable and would be considered against the circumstances of the individual case.
- The law covering sickness absence for these three conditions is the same as for other disabilities. However, it may be more likely that taking what is termed 'disability leave', rather than sick leave, might be seen as a 'reasonable adjustment'.
This web page should be used together with Acas guide Disability discrimination: key points for the workplace [392kb]. It includes more of the considerations for employers and employees in practically and sensitively dealing with circumstances where an employee has a potentially progressive or life-threatening condition. Also, it signposts to where they can find out more.
Telling an employer
Generally, in law, an employee does not have to tell their employer about their condition, but it may be more practical for them to do so, so the employer can support them and take their condition into consideration. However, there are some circumstances where an employee must tell their employer if they have MS or HIV.
Role of the manager
Managers have a duty of care to their staff and must take reasonable steps to ensure the wellbeing of their staff. Managers may find having a conversation with a member of the team who has Cancer, HIV or MS challenging. However, it's much better to try to have a conversation early on. Communication is a key area between the employee and manager. Below are some considerations for both employers and employees regarding the three conditions.
Often an outcome of conversations with staff can reveal the need for reasonable adjustments. Employers must make reasonable adjustments for disabled workers which will enable them to stay in their job, although they are not required to change the basic nature of the role. A reasonable adjustment can be a change or adaption to the working environment so a disabled worker is not disadvantaged when doing their job. For someone with a progressive illness this may be, for example, a change in working hours or extra time off for medical appointments, but generally it will depend on the circumstances of each employee. Often people diagnosed with HIV and taking medication will not need any reasonable adjustments as the condition will have minimal impact on their day-to-day activities.
Managers should gain an understanding of the condition and the effects it may have on the employee so they can gauge what sort of reasonable adjustments the employee may need. Making reasonable adjustments can be a complex area - to find out more see the guide, Disability discrimination: key points for the workplace [392kb]
In addition to speaking to an employer, someone with a potentially progressive condition should also consider if colleagues should be told. Telling colleagues will help them to understand why the member of staff is away from work, or not operating as they normally do. It will also help them come to terms with the member of staff's condition and allow them to support the employee. An employee can discuss telling colleagues with their line manager and get their support in sharing the news in the most sensitive way. Line managers should not assume that an employee with a progressive condition wants their news shared and so must respect their confidentiality or wishes about who should be told what. Sharing information about someone's health without their permission is a breach of the Data Protection Act 1998.
Disclosing a diagnosis of HIV can be particularly challenging for some employees as some people still hold certain views of HIV which are often factually incorrect and discriminatory. Often these views are based on fear or prejudice and can have a very negative impact on someone who is already dealing with a life-changing diagnosis. In many circumstances it wouldn't be necessary for an employee to share their diagnosis of HIV. If they do choose to do so, then line managers should be prepared to deal with any discriminatory comments.
Keeping in touch
Staff members may take pre-agreed absences which could include treatment or recuperation. While a member of the team is away, reasonable contact should be maintained. Line mangers will need to assess the situation and balance expressing concern and showing support, with not contacting the employee too much and overwhelming them when they may need to recover from treatment.
Considerations for employers and employees regarding Cancer, HIV & MS
If the employee does tell their employer, the employer should:
- talk to the employee early about whether they want their condition to be kept confidential, or what they want and don't want their colleagues to know, who will be told and who will do the telling. These must be the employee's decisions.
- explain that colleagues may be more understanding about absences and any changes in work arrangements if they know what's happening.
- talk to the employee about 'reasonable adjustments' which would help them.
- make it easy for the employee to talk about the time off or 'reasonable adjustments' they need - for example, for medical appointments, treatment or recuperation - and try to have regular chats so they know if anything needs to change.
If talking to colleagues, concentrate on the impact the employee's condition may have on people and projects at work, and how best to talk to the employee, but avoid giving personal details.
Make sure the employee is clear about their employment rights, including sick pay and any other benefits they may be entitled to. Also make sure the employee does not feel pressured into returning to work too soon.
Particular considerations concerning Cancer
Cancer is the most common progressive condition, but often is not terminal. With improvements in how to prevent and treat the different types of cancer, more people are surviving the disease and living with it as a chronic or long-term condition. Many people can be cured.
There are a range of cancer charities offering support, including Macmillan Cancer Support which offers specific advice for employers and employees on dealing with cancer in the workplace including:
- talking about cancer.
- understanding the impact of cancer treatment, side-effects which can often be harder to deal with than expected and the effect on the employee's work.
To find out more, go to http://www.macmillan.org.uk/ to access its guidance for employers supporting staff with cancer. Macmillan also offers advice to employees affected by cancer, including information on their rights at work.
Particular considerations concerning HIV
HIV is a virus mostly transmitted through sex. It weakens ability to fight infections and disease. Early diagnosis and treatments enable most people to live an active life and avoid developing AIDS, when the body can no longer fight life-threatening infections. There's no cure but most employees with HIV say the condition has no or little impact on their working life, and are only likely to need infrequent 'reasonable adjustments', such as flexible hours, working from home occasionally or time off for a clinic appointment. But, there can be two particular times when an employee's HIV is more likely to impact on their work life: when they are diagnosed; and when they start or switch treatment. HIV medication can have side-effects such as fatigue, nausea and disturbed sleep.
National Aids Trust research has found that almost four in ten employees with HIV do not tell their employer about their condition, sometimes because they are concerned how the employer or colleagues might react.
For almost all jobs, an employee does not have to tell their employer about their HIV diagnosis. However, there are specific conditions for HIV positive healthcare workers who perform exposure-prone procedures, for example, dentists, surgeons and midwives. People living with HIV can work in these roles but they have to be on HIV treatment, with an undetectable viral load, and regularly monitored by their HIV and occupational health physician.
An employee or job applicant with HIV should consider telling their employer about their condition if the job involves travel abroad to a country which restricts entry, bars entry or deports people with HIV.
Someone with HIV cannot join the Army, Navy or Air Force. However, if someone is diagnosed while in a military role the armed forces may try to redeploy them to a non-front line role.
To find out more, see charity National Aids Trust's guides including HIV at Work: Advice for employers, and Advice for employees living with HIV on http://www.lifewithhiv.org.uk/online-guides
Particular considerations concerning MS
Multiple Sclerosis, generally, is not fatal. There's no cure and people can be affected very differently. Many different symptoms can range from fatigue to paralysis. Some can come and go, or be present all the time. Treatments, exercises and devices can mean that life expectancy is similar to that of most people. However, rare forms can involve complications, such as infections, which can be fatal.
An employee must tell their employer about their MS if:
- it may affect health and safety in the workplace.
- they drive for their job and have a restriction on their licence because of their MS, or they drive a vehicle such as a taxi, lorry or bus, or they are covered by their employer's driving insurance, or MS may affect their ability to drive safely.
- they work in the armed forces.
Not everyone with MS needs extra support in the workplace, and many who do only need small 'reasonable adjustments' - for example, moving their desk away from a radiator, or allowing them to avoid commuting during the rush hour.
An employer should avoid comparing the needs of one employee with MS against the needs of another because their symptoms can be very different. People with MS can have relapses, when they develop new symptoms or old symptoms come back. These can come on over a few hours or days, and can last from a few days to many weeks. In a relapse, an employee may be unable to work. Also, during a relapse or when they are first diagnosed, encourage the employee to not make any major decisions about work - such as changing jobs, reducing hours or stopping work completely.
To find out more, visit The Multiple Sclerosis Society's website - https://www.mssociety.org.uk/ to access its guidance for employers and employees. The Disability Law Service also works on behalf of the Multiple Sclerosis Society and offers the MS Legal Line service - http://www.dls.org.uk/Pages/MS-Officer.aspx
Equality and Diversity - https://elearning.acas.org.uk/
The basics of what employers of all sizes, managers, employees and their representatives must and should do to make their workplaces a fair environment and comply with equality law.
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The basics of what employers of all sizes, managers, and employees and their representatives must and should do when discrimination happens or is alleged within the workplace.
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