Returning to the workplace after July 19 2021: Tips for those with cancer and those who are immune suppressed either permanently or temporarily

Introduction

On 19 July the government lifted the remaining Covid restrictions in England.

Face masks are no longer legally required (although guidance suggests wearing masks would still be advisable in enclosed and crowded places, and face masks continue to be mandatory on TfL services)
The 2 metre (or 1 metre plus) social distancing rule has ended
All legal restrictions on numbers meeting indoors and outdoors have been removed
The guidance requiring people to work from home where possible has been removed.

Employers have a legal duty to protect the health, safety and welfare of their employees and others who may be affected by their business. As recommended by the CIPD we believe all employers should focus on this, particularly in relation to those who are immune suppressed because of their cancer treatment or their type of cancer (e.g. those with blood cancers – the various forms of leukaemia, lymphoma, myeloma etc for whom vaccines are less effective).

The CIPD recommends that employers consider 3 key questions before bringing people back to the workplace: is it essential; is it sufficiently safe and is it mutually agreed? Workplaces and different sectors of business will vary and some will be more adaptable than others.

In this note we include some tips, questions and answers which you should find helpful in thinking through what is right for you in managing your return to the workplace – but first of all a brief recap on your rights.

Your Rights

As a person affected by cancer you are still protected by the Equality Act. This means that you should not be discriminated against, harassed or victimised because of your illness or anything related to it. The Act also says that your employer should make ‘reasonable adjustments’ that allow you to continue working. This applies for the rest of your life, not just while you are having treatment or for a limited time after finishing. The issue becomes of course what is and what is not reasonable, and this depends on each individual set of circumstances.

Speaking to your employer

If you want or need to return to your workplace and are concerned about the safety of your workplace, speak to your employer to find out what precautions they are taking to reduce your risk. Depending on the size of your organisation you could speak with occupational health, human resources or your line-manager.

Before speaking to your employer, you may find it helpful to talk to your clinical team and/or GP about your circumstances and the impact of returning to work. You may, for example, be required to provide your employer with a fit note or medical opinion on returning to the workplace before any changes are agreed.

Questions you might ask your line manager/HR

Will the company/organisation allow me to work/continue to work from home? Will this be possible for some or all of the working week?
Will adjustments be made to make it possible for me to work from home/continue to work from home?
What are the provisions for flexible working hours? If I come into work, can I flex my hours to start later/leave earlier?
What provisions are being made to make the workplace a safe environment? (For example, glass barriers, face masks – remember face mask protect those around you rather than provide protection for the wearer)
What should I do if my colleagues refuse to wear a mask when near me/harass me for wearing a mask/do not keep a social distance?
Given my circumstances will it be possible to work in an area where I will have less/little/no contact with other people?
If a colleague I have been in contact with tests positive for COVID, will I be allowed to go home/stay at home?
Rather than use public transport, will the company pay for a cab home if I need one? Or provide a parking space so I can drive to work?
Who should I contact if I have any concerns about my safety?

Other sources of support

You can get advice from:

If you need support to work safely at home or in the workplace, you might be able to get help from:

If you think your employer is treating you unfairly because of your cancer diagnosis, the Equality Advisory and Support Service (England, Scotland and Wales) and the Equality Commission for Northern Ireland (Northern Ireland) offer free advice. If you are concerned about a health and safety issue at work you can report your employer to the Health and Safety Executive (see above).

Frequently Asked Questions and Answers

As someone with cancer am I still covered by the Equality Act?

Yes. People with disabilities are protected under the Act. Cancer automatically meets the legal definition of a ‘disability’, even if it is in remission.

Exactly how am I protected by the Act?

The Act protects disabled individuals from being subjected to a detriment because of something arising from their disability. If you are discriminated against, harassed or victimised because of something relating to your cancer then you would be able to bring a claim in the Employment Tribunal against your employer. If your claim is successful, you may be given a financial award. Your employer also needs to make reasonable adjustments if you require them because of your diagnosis.

For example, if your employer cuts your pay because they think you are spending too much time away from work for appointments, this could amount to discrimination and a failure to make reasonable adjustments which is unlawful under the Act.

Has anything changed in terms of my rights as a result of Covid?

No. You are still protected by the Act.

I have been shielding until now, do I have any continuing right to shield?

If you are concerned about returning to work due to your health, you should discuss this with your employer and try to come to some alternative arrangement. Your employer must implement reasonable adjustments (such as allowing you to work from home for at least part of the week) to support you with your diagnosis.

What is reasonable will depend on the facts of each case. For example, unfortunately, it may not be reasonable to ask your employer to allow you not to go to work indefinitely when you cannot work from home. You can always discuss this with your employer though and see what they say.

Does my employer have to do a risk assessment of the workplace and will I be allowed to see it?

Yes, all employers must conduct a Covid-19 risk assessment. Your employer should let you see the risk assessment. If there are fewer than five staff members in your organisation, however, then the risk assessment does not need to be written down (but it still needs to have been undertaken). All employers with over 50 members of staff are expected to publish their risk assessment on their website.

What should I do if my employer insists that I return to the workplace although I can just as easily work from home, and have been doing so during the pandemic? Can I refuse?

Under the Equality Act your employer must make reasonable adjustments to support you. If you can work just as easily from home but your employer does not let you, then that could amount to a failure by your employer to make reasonable adjustments. You can refuse to go into work, but you should receive further advice before doing so.

What should I do if I want to work fewer hours in the office/ want not come into the office because I feel it’s unsafe there – because my immunity is compromised because of my (current/recent cancer treatment/type of cancer) – and my employer refuses the request? Can I refuse?

The first thing you should do is have a conversation with your employer. You can ask what measures they have in place already, and suggest additional measures too. For example, you could ask for them to implement (or continue to implement) social distancing measures, a one-way system, temperature checks, strict cleaning regimes and hand-sanitising facilities even though the government has lifted the requirement to socially distance. You may also wish to ask what your employer’s stance is on face masks in the workplace and vaccines (for example, is a vaccine policy being implemented?).

You can refuse to go into the workplace if you reasonably believe that there is a serious risk and imminent danger if you were to attend the workplace and you cannot reasonably be expected to avert that danger. However, this could cause tension between you and your employer and you should seek further advice before refusing to go to work.

Can I be sacked or made redundant if I do not comply with my employer’s wishes (see above)?

You should not be sacked or made redundant if you do not comply with your employer’s wishes because you genuinely and reasonably believe that if you were to do so you would be putting yourself (or others) at risk of serious and imminent harm. If this happens, you may have a claim against your employer and should seek further advice.

What should I do if I am required to be in the workplace but I am too concerned about the virus to use public transport? Is the company required to reimburse me for using my car or taking a cab?

Reimbursing you for taking a cab or using your own car could amount to a reasonable adjustment, but it will depend on your specific circumstances. For example, it would perhaps be reasonable for a large employer to do this but if you work for a small employer, it may not be reasonable to expect them to incur this expenditure.

What should I do if a colleague tests positive for Covid and I have been asked to self-isolate but my employer says I should ignore it?

Your employer should not do this. You can refuse to go to work (but be aware that this may cause tension between you and your employer) and report this to the Health and Safety Executive. In the first instance, try to talk to your employer and express your concerns to see if they change their mind. If applicable, you may wish to contact your Trade Union Representative.

With thanks to Kathryn Burke at Sheridans and to Anne Hook at Lymphoma Action for helping us to prepare this note.