Work and cancer legal and finances

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1 Work and cancer legal and finances This information is an extract from the booklet, Work and cancer. You may find the full booklet helpful. We can send you a copy free see page 12. Contents Discrimination at work Financial issues More information and support Discrimination at work Research has shown that most employers do not discriminate against employees who are diagnosed with cancer and are having treatment. Your employer should provide help and support to enable you to do your job. There are laws protecting the rights of workers who suffer from illnesses like cancer. Disability Discrimination Act (DDA) Under the Disability Discrimination Act (DDA), it is unlawful for an employer to discriminate against a person because of their disability. Everyone with cancer is classed as disabled under the DDA and so is protected by this Act. Macmillan and Cancerbackup have merged. Together we provide free, high quality information for all. Page 1 of 12

2 The DDA covers workers who were disabled in the past, even if they are no longer disabled. So a person who had a cancer in the past that has been successfully treated and is now cured will still be covered by the DDA. This means their employer must not discriminate against them for a reason relating to their past cancer. The employer has a duty to make reasonable adjustments to workplaces and working practices to ensure that people with a disability are not at a disadvantage compared to others. What is considered a reasonable adjustment depends on things such as: the cost of making the adjustment the amount the adjustment will benefit the employee the practicality of making the adjustment whether making the adjustment will affect the employer s business/service/financial situation. Some examples of a reasonable adjustment include: allowing an employee time off to attend medical appointments modifying a job description to take away tasks that cause particular difficulty allowing some flexibility in working hours allowing extra breaks to help an employee cope with fatigue temporarily allowing the employee to be restricted to light duties adjusting performance targets to take into account the effect of sick leave/fatigue etc on the employee moving the employee to a post with more suitable duties (with the employee s agreement) moving a work base for example, transferring to a ground-floor office if breathlessness makes it difficult to climb stairs ensuring suitable access to premises for employees using wheelchairs/crutches etc providing toilet facilities appropriate for a disabled employee allowing working from home Page 2 of 12

3 allowing phased (gradual) return to work after extended sick leave providing appropriate software (such as voice-activated software for employees who can t type) changing a job interview date/time so as not to clash with an applicant s medical appointment. The DDA covers the recruitment process; the terms and conditions of employment; opportunities for promotion, transfer, training and benefits; unfair dismissal; unfair treatment compared to other workers; and harassment and victimisation. If you want to know how the DDA can help you, you can ask the information officers at the Equality and Human Rights Commission helpline or your local Citizens Advice Bureau. Despite these laws, discrimination may still occur if your employer doesn t take your situation into account. For example, this can include: an employer not making reasonable changes to enable you to do the job (eg to cope with fatigue) an employer suggesting that a person with cancer would be better off not continuing to work being dismissed for a reason relating to your cancer being demoted to a lower-paid or less demanding job being passed over for promotion in favour of someone with less experience or ability to do the job being chosen for redundancy for a reason related to the cancer (for example, if you ve had a higher rate of sick time than your colleagues). not being given a job because of the cancer not being allowed time off for medical appointments having an unfavourable appraisal or performance review (for example, if you have had a lot of sick leave or tiredness and have not met targets or objectives as a result of this) an employer disrupting your entitlement to sick pay being harassed an employer making an employee s life very difficult so that the employee feels that they cannot Page 3 of 12

4 stay in their job (eg being teased about hair loss, or being laughed at or whispered about by colleagues) being abused by employers or colleagues (for example, being given unfair workloads) victimisation. Some problems may happen because of misunderstandings about your cancer. Your employer may assume that you can no longer do the same job, or that the stress of having cancer makes you a poor candidate for promotion. Your colleagues may also think that they will need to do extra work because you can t do your job. Any of these attitudes towards people with cancer can lead to subtle or obvious discrimination in the workplace. Victimisation Under disability rights law, victimisation is when a disabled employee is treated less favourably than other employees as a result of their attempt to assert their rights as a disabled person. An example of this would be that an employee s manager is awkward about a request for time off for a chemotherapy appointment. The employee reports the problem to the human resources department. The human resources manager tells the manager that they must let the employee have the time off. The manager is angry that the employee went over their head to the human resources department. As a result the manager doesn t allow the employee to go on a training course and gives them a poor appraisal. So, victimisation occurs when an employer takes revenge on an employee for trying to assert their disability rights. If you are being discriminated against or victimised If you feel that you are being discriminated against, you can work with your supervisor, manager or human resources department to resolve the problem informally. Talking openly to your manager about your needs and their needs may help to resolve the situation. Page 4 of 12

5 If you feel unable to talk to your manager, you can ask someone in the human resources department or an occupational health adviser for help. If you belong to a trade union, you can get help and support from a union representative. What you can do for yourself Find out about relevant company policies from your employer or human resources department. Look at the Employee Handbook if you have one. Go to your employer with suggestions and solutions to demonstrate your commitment to your job. Suggest working from home, flexible hours, using holiday time, changing your role or job description, adjusting targets or objectives, or changing to lighter duties. If you go back to work after long-term sick leave, suggest a phased return in which you increase your hours gradually over a period of time. Know your legal rights ask your union representative or speak to one of the relevant organisations. If adjustments are needed at your workplace, ask about the Access to work scheme at your local Jobcentre Plus office. Unresolved problems It s not possible in a short booklet to go into all the possible discrimination or victimisation problems that may occur. It s also not possible to explain your rights in each situation. However, the suggestions below may help you if you feel that you are being victimised or treated unfairly. Think carefully about your goals and the possible outcomes before taking any action. Contact the organisations that give information about legal rights and employment issues. Find a colleague or union representative who would be willing to help you talk to the appropriate manager about your situation. Always try to resolve any problems informally in the first Page 5 of 12

6 instance. If this is unsuccessful, consider the consequences of raising a formal grievance or of going to an employment tribunal with a claim for disability discrimination, or unfair or constructive dismissal. Ask yourself whether the long and drawn-out process is worth it and how it will affect your life and family members. It may help to think about how you would feel if you lost the claim. It s important to examine these issues carefully, and to understand the possible impact of what you are getting into. Contact the Citizens Advice Bureau. It can provide free legal advice initially or put you in contact with a local solicitor who offers a free first interview, where they can assess your chances of success. Contact a lawyer if necessary. Law centres (listed in your local phone book) can give free legal advice and can assess your case. The Law Society can give you details of lawyers specialising in employment rights. Be aware of your rights. The Disability Discrimination Act (DDA) covers any employee from the first day of their employment and even covers job applicants. You can use the Act to force an employer to make some adjustments to help you with your work or to compensate you for discrimination. The DDA does not cover members of the armed forces. Be aware of legal deadlines. If a dispute cannot be resolved and a worker covered by the DDA wishes to take legal action, an application must be submitted to an employment tribunal within three months of the discriminatory act/ incident. The employer s grievance procedure must have been completed before the case is taken to an employment tribunal. If you are dismissed by your employer, usually you can only claim for unfair dismissal if you have 12 months or more continuous service with your employer. Unfair dismissal law only applies to people who are employees in the strict sense of the word. It does not apply to casual workers, agency workers, self-employed contractors, apprentices, or people on work experience. If an employer treats you so unfairly that it causes a total breakdown of trust and confidence between you and your employer, and you feel that you cannot continue your work, you can resign and make a claim for constructive dismissal. However, this is extremely risky as you will have to resign Page 6 of 12

7 Financial issues and constructive dismissal claims are very hard to win. They should never be considered without taking legal advice. In order to claim constructive dismissal you must resign promptly in response to your employer s behaviour and must make your reason for leaving clear for example, in your resignation letter. Help with legal costs Be aware of the financial effects of legal action. Legal cases can be extremely expensive. Some solicitors take cases on a no-win no-fee basis. This should mean that you only pay the solicitor if they win your case, but check with them to see if there are any hidden charges. A small number of solicitors will take on disability discrimination claims under the government s Legal Help scheme, which is means tested. The scheme provides free legal assistance to prepare the case, but does not cover legal representation at a tribunal hearing. The Legal Services Commission has details of all solicitors who assist people under the Legal Help scheme. If you are a member of a union, the union may be prepared to take your case to tribunal on your behalf, with their own legal experts, solicitors etc. Some specialist insurers can insure you against losing the case and having to pay both your own legal costs and your opponent s. The insurer will look at your case and assess your chances of success. The amount of your premium is then based upon your chances. The insurance only covers one specific case and is not general legal insurance. Taking time off sick During treatment some people may try to continue to work, but may need to take a few days or weeks off. This may be as one period of sick leave, or could be a few days every month for a period of time. Some people choose or need to stop working throughout their Page 7 of 12

8 treatment, which could be a period of weeks, months or even years. When deciding whether you want to carry on working or whether you would like to take the whole time off sick, you may like to think about the issues below. It may help to contact an independent financial adviser (IFA) to get advice on your financial options. IFAs can assess your individual situation and recommend the best course of action. You can find a local IFA by referral from family or friends, looking in your phone book, or by contacting IFA Promotions or the Personal Finance Society. If you have any private insurance cover for income replacement, life insurance, loan or mortgage protection or critical illness cover, you should speak to your insurance company or financial adviser as soon as possible. You can get advice from your insurer or financial adviser about any conditions which apply to your life insurance or pension plans, such as being able to take a break from payments or a waiver of premium. A waiver of premium benefit means that the insurance company will pay the premium for you for a set period of time (for example, until you are fit to work or until the end of the policy). Sick pay All employees who earn enough money to pay national insurance contributions are eligible to receive Statutory Sick Pay (SSP) if they are off sick for more than four days (including the weekend), for a maximum period of 28 weeks. To claim SSP, you must tell your employer that you are sick no later then seven days after you first become ill. The payment is made by the employer on behalf of the government. The employer claims a contribution towards the payment, which is deducted from the payment of national insurance contributions. Some companies pay more than the basic rate of statutory sick pay and this is known as contractual or occupational sick pay. This will be detailed in your contract of employment/staff handbook or you could ask your human resources department for further information. Occupational sick pay is usually paid as a top up to SSP (ie you don t get both: SSP is a part of your occupational sick Page 8 of 12

9 pay). SSP starts when you have been off work for four days and continues until you either return to or leave work, or until the end of the 28-week period. At the end of the 28-week period, your employer should then complete a form SSP1 (Statutory Sick Pay Leavers Statement) and give it to you. This will explain that your SSP is finishing and tell you where to get further help and advice about benefits. Periods of SSP payment linked by less than eight weeks (56 days) are considered to be the same period of absence in other words you need to be back at work for over eight weeks before you can claim again for the full 28 weeks of SSP. Sick certificate If you are ill and not able to work for more than a few days, remember to ask your GP for a medical certificate to cover the period of your illness. If you are in hospital, ask your doctor or nurse for a certificate to cover the time that you are an inpatient. This will be necessary if you need to claim a benefit. You may need to take a medical test to assess if you are eligible to claim. Benefits If you are still unable to work after receiving SSP for 28 weeks, or your contract ends before that time and you are still unable to work, you may be able to claim Employment and Support Allowance (ESA). This is a new benefit which replaces Incapacity Benefit. There are two parts to ESA: a contributory part which is dependent on how much National Insurance you have paid, and a means tested part which is dependent on your income and savings. You may get either or both parts. Usually, ESA is paid at a basic rate for the first 13 weeks. This is the assessment phase. During this time you may need to complete a questionnaire or attend a medical assessment. After the 13-week period you will be assessed and placed into one of two groups: the support group or the work-related activity group. If you are found to have limited capability for work you will be placed in the support group. An additional payment will be paid to anyone in the support group. Page 9 of 12

10 If you are found not to have limited capability for work you will be placed in the work-related activity group. A small additional payment will be paid to anyone in this group. You will have to attend five more work- focused interviews. The interviews are to help you get back into work. If you are self-employed you are entitled to claim ESA as long as you have paid the correct level of National Insurance contributions. People who have not paid the relevant National Insurance contributions may qualify for ESA under the means-tested route. If you need help with personal care, you may qualify for Disability Living Allowance (DLA) if you are under 65 or for Attendance Allowance (AA) if you are over 65. People under 65 can also claim DLA if they have mobility problems. Ask your local Department for Work and Pensions office for claim forms or call the Benefit Enquiry Line on There is a fast-track claim for people who may not live longer than six months. People who claim under these special rules need to get their doctor to complete a form for either benefit. It s impossible to tell exactly how long someone may live and many people with advanced cancer may be entitled to this benefit. Special rules payments of AA and the DLA care component are reviewed after three years. If you have a dispute over a benefit claim, a specialist welfare rights solicitor can advise you the Legal Services Commission can give you details of specialist solicitors. You could also contact your local Law Centre or Citizens Advice Bureau. Disability/life assurance and occupational pensions All life assurance, critical illness insurance and occupational pension schemes have different rules and operate in different ways. It s important to get independent financial advice to find out about the policies you may have and the best thing to do in your situation. For example, you may want to use a payout from an insurance claim or from severance of your employment to pay a lump sum off your mortgage. Life assurance policies If you have an existing life insurance policy and can t continue to pay your premiums you can find out if a waiver of premium applies to the plan. This means the insurance company will Page 10 of 12

11 pay the policy premium for you, for a time, if you are ill and unable to work. Different companies have different policies and the time they will pay the premiums may vary. If you need money urgently, you could talk to an independent financial adviser about your options. For example, you may be able to take out a loan against your life insurance policy, sell the policy or surrender the policy. However, you may find it impossible to take out a new life insurance policy for a few years after you have had cancer, so bear this in mind when planning your finances. Occupational pensions If you are paying into an occupational pension scheme, or are considering paying into one, make sure you have full information about the scheme. Your human resources manager, trade union representative or pension scheme s trustees will be able to help. You have the right to leave or decide not to join a scheme, but always consider the implications carefully and take advice from an independent financial adviser before you make a decision. If you leave one job to go to another, there are several ways your pension rights may be dealt with. Find out what your options are from your new employer. You may want to discuss it with an independent financial adviser. If you ve had a temporary interruption of work due to sickness, find out how this affects your pension. There can be variations in the conditions which might affect your pension entitlement. Information about financial issues For further detailed information on benefits and financial support please ring us on Our booklet, Help with the cost of cancer, provides information about different kinds of financial help available for people with cancer. Call us on for your free copy or order one at our website be.macmillan.org.uk. You can also find out more about benefits from your local Citizens Advice Bureau or Social Security office. You will usually need to make an appointment. Their addresses and telephone numbers are in the phone book. You can also get Page 11 of 12

12 information from the Benefit Enquiry Line on or the Department for Work and Pensions website at dwp.gov.uk The Benefit Enquiry Line has some advisers who speak other languages and can also arrange to give its information through interpreters. Benefit information in other languages is available on the Department for Work and Pensions website at dwp.gov.uk/otherlanguages The hospital social worker can give you advice on sources of financial help. A Guide to Grants for Individuals in Need is a book which gives details of all the trusts and organisations that provide financial support. It is available from bookshops or local libraries. We can send you a fact sheet about financial issues and sources of financial support. Remember that a change in your circumstances (such as a reduction or increase in your salary or in the number of hours you work) can mean you re entitled to more or less benefit. You need to find out in detail the regulations and conditions that apply to your benefits. More information and support If you have any questions about cancer, ask Macmillan. If you need support, ask Macmillan. Or if you just want someone to talk to, ask Macmillan. Our cancer support specialists are here for everyone living with cancer, whatever you need. Call free on , Monday Friday, 9am 8pm We make every effort to ensure that the information we provide is accurate but it should not be relied upon to reflect the current state of medical research, which is constantly changing. If you are concerned about your health, you should consult your doctor. Macmillan cannot accept liability for any loss or damage resulting from any inaccuracy in this information or third party information such as information on websites to which we link. Macmillan Cancer Support Registered charity in England and Wales (261017), Scotland (SC039907) and the Isle of Man (604). Registered office 89 Albert Embankment, London, SE1 7UQ Page 12 of 12

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