Thompsons ERU North West Regional Women’s Committee Rights of Employees with Breast Cancer

Introduction  2006 survey carried out by CIPD, Cancerbackup and Working with Cancer.  1 in 5 employers did not know that cancer is covered by the Disability Discrimination Act (“DDA”).  1 % of organisations did not have a specific policy for managing and supporting employees with cancer.  2008 Survey by Breast Cancer care showed that 68% of employees did not know about their rights under the DDA

Legal Rights  Disability discrimination  Unfair dismissal  Flexible working  Time off for urgent family reasons

Disability Discrimination Who is covered?  Employees, Workers, Self Employed, Agency at point of diagnosis  Past disability  Following an operation to treat cancer  Coleman -v- Attridge Law ET Case No /2005  Perception discrimination  It does not apply to those who have a genetic predisposition.

Types of Discrimination 5 aspects:  Direct;  Disability-related;  Duty to make reasonable adjustments  Harassment;  Victimisation.

Direct and Disability-Related Discrimination  Direct – less favourable treatment because of disability.  Disability-related – less favourable treatment for the reason related to their disability.  Mayor and Burgesses of the London Borough of Lewisham -v- Malcolm [2008] UK HL 43.

Reasonable Adjustments  Applies where the employer knows or reasonably ought to know of the disabled person’s disability;  When and if to notify the employer;  Sensitive personal data under Data Protection Act 1998.

Examples of Reasonable Adjustments  Redeployment – Archibald –v- Fife Council [2004] IRLR 651  Creation of a new job – Southampton City College–v- Randall [2006] IRLR 18  Sitting an exam – Project Management Institute –v- Latif [2007] IRLR 579.  2006 survey flexible working, adjustments to work and return to work policies – three quarters  Additional sick pay – less than half.  Paid additional leave – just under a third.

What is “Reasonable”? This will depend on:  Effectiveness of the adjustment  Suitability of carrying it out;  Cost and financial resources;  Size of employer; Access to Work available to help with costs

Unfair Dismissal  1 year – employees only.  Capability = fair reason.  Employer must act reasonably.  Acas Code of Practice.

Flexible Working  28 weeks service – employees only.  Right to request.  Change in hours or working conditions.  Strict procedures apply see flowchart.  Right can be refused on business grounds.

Urgent Family Reasons Applies to all employees where it is necessary :  To provide assistance when a dependent falls ill, gives birth, is injured or assaulted;  Make arrangements for the provision of care for a dependent who is ill or injured;  As a result of the death of a dependent;  As of unexpected or disruption or ending of arrangements for the care of a dependent;  To deal with an incident involving a child at school.

Using The Legal Rights  Employment Tribunal – 3 month time limit.  Lodge a grievance and follow ACAS Code  Employer has to follow ACAS Code in a dismissal/disciplinary  Pre- Action Conciliation  Mediation

Conclusion  Legislation provides minimum rights.  The union can and does often negotiate better terms and conditions.  Use Code of Practices, Guidance and Questionnaires