There have been reports that cancer diagnoses in young people (under the age of 50) have risen sharply since the pandemic. Cancer can be a debilitating disease, and as such, is viewed as a disability under the Equality Act 2010 (“the Act”). It was estimated by Macmillan Cancer Support that in October 2022 three million people in the UK were living with cancer, and this figure is expected to rise to three and a half million by 2025.

This article explores disability discrimination claims for the benefit of employees who may be experiencing discrimination as a result of their cancer (among other disabilities).

Disability Discrimination

Disability is a protected characteristic under the Act. Disability discrimination covers direct and indirect discrimination, but also harassment and victimisation. It can occur before employment starts (i.e. during the recruitment process), in or outside the workplace, and even outside of working hours (such as during a social event or via social media).

Disability is when an employee:

• has a ‘physical or mental impairment’
• the impairment ‘has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’

Examples of conditions/impairments which are automatically considered disabilities, include:

• cancer;
• an HIV infection;
• multiple sclerosis; and
• a visual impairment – if someone is certified as blind, severely sight impaired, sight impaired, or partially sighted.

In Lofty v Hamis t/a First Café [UKEAT/0177/17], the Employment Appeal Tribunal found that employees who are suffering from a minor form of cancer (such that it is not invasive, such as Ms Lofty’s case where she was diagnosed with pre-cancerous ‘lentigo malignia’ – a form of melanoma) are still protected under the Act.

Direct Discrimination

When an employee is treated less favourably because of their disability than someone without a disability would be treated.

Indirect Discrimination

Indirect disability discrimination occurs when a policy or practice is implemented for all employees. However, this policy, or practice, puts an employee at a disadvantage due to their disability.

Reasonable Adjustments

Employers are under a duty to make reasonable adjustments to make sure employees with disabilities are not substantially disadvantaged when doing their jobs. Failing to accommodate a reasonable adjustment could therefore be discriminatory. A reasonable adjustment can involve providing an employee with specialist equipment, adjusting their duties, allowing them to alter their hours of work (or accommodating time off for medical appointments during working hours), and making reasonable adjustments to the premises (this is not an exhaustive list).

Case Studies

1. Adeline Willis was a compliance executive at NatWest Bank for over six years. She was on a secondment as “head of operational continuity” in the resolution department due to her former roles being made redundant.

Ms Willis was diagnosed with cancer in August 2019 and she informed her line manager, Ms Pragnell, shortly thereafter. Ms Willis did not take any substantial leave after her diagnosis. However, she went to the office twice a week and worked from home for the remainder. If she had an appointment at the hospital, she would work from home.

On 3 September 2019, Ms Pragnell informed Ms Willis that Ms Lambourne would be her line manager instead, as Ms Lambourne would have more time to support her during her treatment.

On 10 September 2019, Ms Pragnell and Ms Williams (Pragnell’s line manager) sought advice from HR on terminating Ms Willis’ secondment early, stating they “can’t not rely on her”.

While Ms Willis was being treated, she had been joining team meetings remotely. On 28 October 2024, upon her return to the office, Ms Willis attended a meeting, where Ms Pragnell informed her, in front of all of the attendees, that Ms Willis would no longer be needed in the meetings going forward. Ms Willis was surprised and humiliated by this, and requested a meeting with Ms Lambourne. Ms Lambourne informed her that the change of Ms Willis’s line manager is permanent, and Ms Willis saw this measure as a demotion.

NatWest attempted to claim that excluding Ms Willis from the meetings were a supportive measure, and that it was not necessary as Ms Pragnel was no longer Ms Willis’ line manager. The Tribunal found that this was evidence of unfavourable treatment, as there were no prior discussions with Ms Willis about reducing her workload.

Ms Pragnell then told Ms Willis that she would not be having an end of year review. But it was found that Ms Pragnell sought advice from HR if this was possible, and HR advised her it is, only if Ms Willis agreed to it. Ms Willis was told the reason for not having an end of year review was to avoid giving Ms Willis a “bad number”. Both incidents were deemed as unfavourable treatment of Ms Willis.

Ms Willis expressed her concerns to Ms Pragnell that she would not get a job within NatWest if she underwent surgery, during a treatment plan update. Ms Pragnell told her not to worry about it, as she would liaise with HR to extend her secondment. The next day, Ms Pragnell met with HR, but discussed an extension of two months on “compassionate grounds”, and not that she “did not wish, or make a business case for, the Claimant to return to the role at the end of her treatment”.

On 28 February 2020, Ms Willis was informed that NatWest agreed to an extension of her secondment for one month, however, her employment would also terminate on 4 April 2020.

The Tribunal found that Ms Willis’ role was not redundant, and that the work she was contracted to do had not ceased/diminished. It further found that the reason for not retaining her on a permanent basis was due to the time Ms Willis took off to receive treatment for her cancer. Ms Willis’ claim for disability discrimination was partially successful on the above.

The Tribunal awarded Ms Willis £87,699.84, including a £35,000 payout due to injury to her feelings (judgment).

2. Lucy Lyddall was a marketing manager at The Wooldridge Partnership, and began her employment in March 2021. Ms Lyddall was diagnosed with cancer two months later. Ms Lyddall was in her probationary period at all material times.

Ms Lyddall required treatment and took time off in May and also in July (also for treatment, but her wedding as well).

Ms Lyddall returned to work in August 2021 after her honeymoon and was dismissed for poor performance immediately. Ms Lyddall had not received any negative feedback prior to her dismissal, and Ms Lyddall was “completely shocked” as a result.

One of the directors of the employer, Charlie Wooldridge, claimed in the Tribunal hearing that the employer didn’t want to send her negative feedback, in order to prevent further stress while undergoing cancer treatment. The Tribunal found that not enough feedback was given to Ms Lyddall. The Tribunal further determined that Ms Lyddall was dismissed, partly due to her cancer.

Ms Lyddall was awarded £32,351.00 in compensation.

3. To give an example of another ‘invisible’ disability discrimination case, the matter of Wright-Turner v London Borough of Hammersmith and Fulham and Dero [2206237/2018], concerned a council worker suffering from ADHD and post-traumatic stress disorder (“PTSD”) (both of which are considered invisible disabilities). She was awarded £4,580,577.39 for being dismissed while on sick leave.

At face value, the damages seem excessive (and they are record breaking), but there are some caveats to this case.

Rachel Wright-Turner (“RWT”) began working for the London Borough of Hammersmith and Fulham (“LBHF”) in November 2017 as director of public services reform. RWT had been diagnosed with PTSD (in October 2017) following her role as the humanitarian assistance lead officer supporting the Grenfell Tower fire in June 2017. RWT informed LBHF’s chief executive of her PTSD diagnosis in a meeting, on her first day of employment. While detailing her experiences, RWT “cried profusely”.

The chief executive of LBHF raised concerns about RWT’s performance on 2 May 2018. LBHF also accused RWT of not disclosing her ADHD in the recruitment process. The Tribunal found “it is likely that the claimant found this both humiliating and offensive”. The Tribunal further found that the chief executive had not likely raised concerns about WRT’s performance, or that LBHF was going to extend RWT’s probation.

At the pub with colleagues, RWT discussed the meeting with LBHF’s chief executive with her colleagues, and she alleged that the executive was treating her unfairly. RWT further disclosed she was worried if there would be consequences for taking sick leave while on her probation period.

RWT then had a panic attack and went to the toilet, accompanied by a colleague. An ambulance was called, and she was taken to A&E where she was assessed as being depressed, suicidal and traumatised, but not intoxicated.

Her colleague sent a text to the chief executive saying RWT had “booked herself into A&E, but don’t worry. She’s OK. It’s not an emergency, she’s had a lot to drink.” This text was found to contain several inaccuracies.

As a result of the panic attack, RWT was signed off work for one month, and this was later extended. LBHF sent a letter on 10 May 2018, informing her that her probation had extended by three months. This letter, however, was found by the Tribunal to have been purposefully doctored, to suggest that the decision to extend her probation was made before she was on sick leave.

In August 2018, RWT had been dismissed via a letter from LBHF, on the basis that LBHF did not think RWT could complete her probation period satisfactorily. RWT engaged solicitors and appealed the decision, and also raised a grievance, on the basis that no concerns were raised prior as to her performance and/or capability.

The Tribunal found both letters were backdated and fitted a pattern within LBHF of deliberate dishonesty in order to deceive the RWT. The Tribunal also found that the decision to extend RWT’s probation period was unfavourable treatment related to RWT’s disability related sickness absence.

RWT was awarded damages for disability harassment, direct discrimination and discrimination arising from disability and held that the employer had unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures in relation to the employee’s grievance and her dismissal. The level of compensation was uplifted due to LBHF’s conduct throughout the proceedings, and when handling RWT’s employment/probation. Furthermore, upon review of expert evidence, the tribunal agreed that as a result of her ordeal at LBHF, it is unlikely that RWT will ever be able to work again.

Notes for Employees

It is not a requirement to disclose any disabilities to an employer at any stage, whether during the recruitment process, or once hired. If, however, you are asked to disclose any medical issues that could impair your ability to perform your duties i.e. on a medical questionnaire, and you elect to withhold your disability and then later seek to rely on your condition to mitigate poor performance, your employer could dismiss you for a breach of trust and confidence,

If you are unable to carry out a job due to your disability, or your disability prevents you from carrying out your job as effectively as someone who does not have the same disability and you receive detrimental treatment as a result, you may be experiencing discrimination.

It is important to note that while the £4.6m compensation award referred to in the last case study above is record breaking, the average award for discrimination cases in the Employment Tribunals in 2023 was £26,172.

Employment Tribunal claims in discrimination cases are calculated using Vento bands and as of April 2024, these are based on:

• Lower band: £1,200 to £11,700 for less serious cases;
• Middle band: £11,700 to £35,200 for cases that do not merit an award in the upper band;
• Upper band: £35,200 to £58,700 for the most serious cases; and
• Exceptional cases: Awards may exceed £58,700 with no upper limit.

* Unlike an ordinary unfair dismissal claim, an employee does not have to have any continuous length of service to bring a claim of discrimination but it is important to remember that claims for discrimination must be lodged with the Employment Tribunal within three months less one day from when the discrimination occurred. *

Notes for Employers

Employers have a duty of care to ensure they provide a safe working environment for staff (and visitors). If an employee fails to disclose a disability to the Company, you cannot simply rely on this omission to deny discrimination should a claim be brought against the company. There are examples of cases where an employee who did not disclose they had a disability to their employer, could still bring a claim on the basis that the employer should have known in any event.

It is important to have comprehensive policies in your staff handbook and to provide equal opportunities training to ensure that other employees do not risk discriminating against disabled employees, so that there is a lower risk of a successful claim being brought forward.

That said, employers should not be afraid to raise concerns of poor performance early on, even if the employee is undergoing treatment. It may be that as an employer, you could address the performance issues, by making reasonable adjustments (temporarily or permanently). It is important to work with your employees to establish what the issues are and to try and identify a solution that works for everyone.

Employers can request an employee’s consent to obtain a medical report from the employee’s GP (or specialist) or refer the employee to an occupational health doctor to better understand the medical condition, any treatment (including side effects) and the likely prognosis for recovery. From this information, you can determine what (if any) adjustments are necessary to enable the employee to perform their duties and whether your business can accommodate them.

When considering if an adjustment is reasonable a company will consider various factors such as:

• how effective the change will be in avoiding the disadvantage the disabled employee would otherwise experience
• its practicality
• the cost
• your organisation’s resources and size
• the availability of financial support.

As stated, the presence of a disability is not a barrier to fair performance management or even dismissal. An employer can still address performance concerns and ultimately terminate employment if an employee is not meeting the necessary performance standards, particularly if adjustments have been accommodated and the poor performance continues. It is however very important that the Company adopts a fair and consistent process in handling any performance management/capability issues to limit its exposure to a claim for discrimination.

Next Steps

If you believe your employer has discriminated against you due to a disability or illness such as cancer, or you are an employer requiring help determining what constitutes a reasonable adjustment, or how best to manage a particular performance issue, please do not hesitate to contact the employment law team here at Griffin Law.

Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation.  For more details of our services please email justice@griffin.law or call 01732 52 59 23.