Wednesday September 6, 2006
Guardian Unlimited
Being diagnosed with a serious illness is hard enough. Telling an employer about that diagnosis can make it even harder. In many cases, employers are supportive, sympathetic and flexible. But others react so negatively that the employee is left feeling they have been dealt a second blow.
In December 2005, Positive Action magazine reported on the case of Scott Watts who had been diagnosed HIV positive. In 2004, Scott was a 29-year-old care worker when he told his employers, High Quality Lifestyle Ltd, about his status.
He had already been through the process with a previous employer, McDonalds, with no trouble, and expected a similar reaction. However, he found himself suspended, dismissed, and his HIV status made public knowledge in his hometown of Dover.
Supported by Ensuring Positive Futures, an employment programme for people living with HIV, Scott's case went to a tribunal in Kent where under the Disability Discrimination Act he won his appeal.
But cases like Scott's are rare. The Employment Tribunal Service says only 4% of claims brought under the Disability Discrimination Act result in a win for the employee.
But the incident graphically illustrates how bad things can get when an employee tries to balance work commitments with an illness.
Contractual rights
Long-term illness can be roughly categorised into two areas. Those who are ill and need a lot of time off, and those who have an illness but can continue to work.
"If you are likely to need several months off, the first step should be to look at your contract," says Hannah Reed, senior rights officer at the TUC. "You may be entitled to occupational sick pay."
This normally depends on how long you have been in the job and what you earn - every employer is different. The scheme for local government staff, for example, provides one month's full pay. If you have been in the job more than four months you could receive an additional two months on half pay.
"If your employer doesn't offer this," says Reed, "you can still get statutory sick pay." This amounts to £70.05 a week for up to 28 weeks, but you have to tell your employer you are sick within seven days of becoming ill.
During those 28 weeks your employer cannot end your contract. After 28 weeks you can apply for incapacity benefit and will have to negotiate your job with your employer.
"If you've been off work for a long time, it is not unreasonable for your employer to ask you to go for a medical examination," says Reed. "This is to assess how long you are likely to be absent, or what changes they might make to your job to allow you to return to work sooner.
"If a chronic illness is behind your long-term sickness, your employer may have to tread more carefully as they could have specific responsibilities under the Disability Discrimination Act (DDA)."
Disability Discrimination Act
The DDA covers a broad range of illnesses and disabilities. To qualify, the illness, mental or physical, must have "a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities".
An employment tribunal has the final say over whether or not an illness constitutes a disability or not. Cancer, HIV and multiple sclerosis count as a disability from the moment you first develop the condition. Other diseases such as Hodgkinson's or motor neuron disease count as a disability when you start to develop some symptoms.
Under this broad definition, the Disability Rights Commission estimates that one in five people of working age in the UK - about 10m workers - are considered to be "disabled" in some way.
In many of these cases people will continue to work, in which case employers and employees have certain obligations.
The first thing to do is tell your employer. "It is helpful to tell them, although you do not have to do so by law," explains Sue Green, senior nurse at cancer information charity Cancer Backup.
"Talking about it can be very difficult, but sometimes the effects of cancer or illness and the need to take time off may make it hard not to tell your colleagues.
"Your employer or human resources manager should give you information about your sickness policy and how much paid and unpaid time off you are entitled to."
Accommodating needs
Your employer should then set about accommodating you. "In most cases your employer must, by law, make 'reasonable adjustments,'" says Green.
These are so you can keep working and can include changing the hours you work, getting special equipment and granting you time off for hospital appointments.
"However, there is no absolute right to paid time off unless your contract specifically states so," says Green. As well as making reasonable adjustments, employers must also consider "redeploying" you, perhaps to a job better suited to your new and developing situation.
However, if all this has been done and the employee remains unable to do their job because of the illness, dismissal is likely to be considered fair by an employment tribunal.
In Scott Watts' case his dismissal was considered unfair and he became a poster boy for the Disability Rights Commission, his picture plastered across the side of buses in a campaign against workplace discrimination.
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