If one of your employees is diagnosed with a serious illness, you need to understand your legal responsibilities regarding the support you are legally obliged to provide, as well the employee’s legal obligations.
Technically, if an employee is diagnosed with a long-term illness such as cancer, they are defined in law as disabled, and once under the Disability Discrimination Act (DDA) employers must make changes to accommodate the employee’s needs at work.
What serious illnesses are defined legally as disabilities?
If you have any kind of long-term, serious illness it could be defined as a disability in law. Impairments must be long-term and substantial to count as a disability and they can be physical or mental. They must affect you for 12 months and significantly impact your daily life (eg it may take you much longer to get dressed in the mornings than if you didn’t have the impairment).
Progressive conditions, such as motor neurone disease or muscular dystrophy, also count, although these are assessed case by case. You automatically meet the “disability” criteria if you are diagnosed with HIV, cancer or multiple sclerosis. Generally, it is the effect of your impairment on your daily life that is considered when disability is defined legally. An underlying condition is not assessed; its consequences are. Technically, a person who is terminally ill is also defined as disabled.
There are certain impairments that are medically defined as mental illnesses that aren’t defined as a disability (eg kleptomania, addiction and pyromania).
What does it mean if your employee is disabled?
If you’re employee meets the definition of disabled you must be aware of the Equality Act 2010, the most relevant aspects concern protecting your employee from any discrimination because of their disability. As an employer you must make “reasonable adjustments” to aid your employee in the workplace. This might be simple things like moving their desk or it could be allowing them to work from home for some time or allowing more time for doctor’s appointments, etc. You should show that you are doing your best to work with your employee and everything reasonable to enable them to continue to work.
The same obligations apply if your employee has a terminal illness. You might assume that an employee will want to stop working, but a lot of people want to continue working despite their illness to retain a sense of normality.
An employer must take into account a serious illness in every instance. You can’t reprimand an employee for taking too much time off for doctor’s appointments if they have cancer, for example. Also, you can’t give them an unfavourable appraisal because they haven’t met objectives as a result of their illness, without taking the illness into consideration.
What are “reasonable adjustments”?
There’s no fixed description, but adjustments are dependent on cost, how much they will help you, how practical it is to make them and whether the adjustment will affect the business, service or financial situation. Cancer support charity Macmillan lists examples of reasonable adjustments for employees with cancer (but these also apply to other illnesses):
- allowing time off for medical appointments
- changing job description to remove tasks that cause problems
- allowing more flexible work hours
- giving extra breaks if the employee feels very tired
- letting employees do light duties for a temporary period
- changing performance targets to take into account the effect of any sick leave or treatment side effects (eg fatigue)
- moving the employee (by mutual agreement) to a role with more suitable duties
- changing the place of work (eg a ground floor office if breathlessness makes it difficult for the employee to climb stairs)
- ensuring access to place of work if mobility equipment (eg wheelchair or crutches) is used
- making available computer equipment that might help (eg voice-activated software if the employee can’t type)
- allowing employees to work from home
- providing a disabled toilet
- allowing employees to return to work gradually following a long period of time off.
What about pay?
You must pay statutory sick pay (SSP) to your employee if they have to have long periods of time off. You’ll only have to pay this for a maximum of 28 weeks. If your employee is off for a chunk of time you must leave their position open for them to return to. It is absolutely illegal to dismiss them.
Once the 28 weeks is up you do not have to pay SSP and your employee should move on to Employment and Support Allowance if they are still unable to work.
Blog provided by Simpson, Sissons & Brooke Solicitors.