If you have an employee who’s been diagnosed with (or already has) a long-term illness, what are their employment rights and your responsibilities? Here’s our quick guide to this sensitive subject plus information on what actually counts as a long-term medical issue…

Included within the Equality Act 2010 is the right 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.

Definition of disabled

In order for someone to be classed as disabled under the Act:

  • They must have either a physical or mental impairment
  • The impairment must have substantial adverse effects
  • The substantial adverse effects must be long-term
  • The long-term, substantial, adverse effects must impact 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.

Exceptions

However, there are some conditions that qualify as a disability under the Act even though they don’t necessarily meet all of the requirements listed above…

From the point of diagnosis, people with cancer, HIV infection and multiple sclerosis are, by law, to be considered as having a disability for the purposes of the protection offered under the Equality Act. This means that there’s no need for people suffering from these conditions to be experiencing effects on their day-to-day activities – protection applies before this happens.

Therefore, cancer, HIV and multiple sclerosis sufferers are protected from less favourable treatment because of their condition, even though they don’t meet the criteria outlined in the Act.

Your duties as an employer

In order to help remove the barriers that the individual’s condition creates, employers have a duty to make reasonable adjustments to their role. 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.

Recent example in law

A Court of Appeal case recently gave guidance in this area: in Griffiths v 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.