123 Any Street

Anytown AL12345
United Kingdom
Tel: +44 (0) 12345678910
Fax: +44 (0) 12345678911
Mr. Alex
Director of XYZ
XZY
Any Street
Anytown
WC12345

9th May 2019

Dear Mr. Alex,

Purpose
This letter is to provide you legal advice regarding the possible dismissal of an employee in the
workplace. James has been sick for the last four weeks and has also in an out of the hospital
undergoing several medical tests. In an event that James has cancer, he might not be able to
return to work. You cannot afford to keep James, and the company will be compelled to
terminate his contract. However, there are possible legal implications that may arise for the
dismissal. If James is diagnosed with cancer, and will not be able to return to work, you should
dismiss him on the basis of impact that he has on the wellbeing of the company, and not on the
grounds of his absence as in this case turn out to be disability-related absences.

Legal Issues
James has been sick for a while, and the company has been making payments for his salary.
Your concern is that continuing to pay James even after employing a temporary worker to cover
his work will have financial implications, and also about the possible law implication. The
payments to James continue to incur extra costs that affect the financial position of the company.

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Given that James has been working for the company for many years, and you do not want to
terminate the only source of his income, but as required you have made a reasonable adjustment
to accommodate James by allowing him to get paid. The issue in the case is on the discrimination
in the workplace as a result of disability, and possible dismissal. An employer and employee
have a contract of employment that binds them together. The contract specifies the terms and
agreements, and conditions in which it can be terminated. The main areas covered under this
letter are Equality Act 2010, discrimination of employees, and consideration of cancer patients as
disabled persons.

Analysis of Applicable Law

The Equality Act 2010 protects people from any form of discrimination in the United Kingdom
in the workplace as well as in the wider society. According to Moses (2010), "The Equality Act
2010 was introduced not just to combine nine separate pieces of UK discrimination law into one
Act, but to raise the standard of protection from discrimination, through harmonisation,
simplification and modification of equality law" (p. 1). Thus, under the Equality Act 2010,
employees in the UK are protected from any form of discrimination in the workplace. The
Equality Act 2010 replaced prior anti-discrimination laws through the adoption of a single Act,
and this makes the law easier to understand and strengthens the protection of workers. The
Equality Act 2010 ensures that persons with disability are not dismissed from the workplace
illegally because of their condition (Lawson, 2011). Before the Equality Act 2010 came into
force, discrimination was covered under the Disability Discrimination Act 1995, the Race
Relations Act 1976, and the Sex Discrimination Act 1975.

The Equality Act 2010 provides the basic framework of protection against direct and indirect
discrimination, harassment and victimisation in services and public functions, premi, work,
education, associations and transport” (Government UK, 2015). Thus, under the Equality Act
2010), employees are protected from indirect and indirect discrimination and victimisation in
services. The Act also protects people with protected characteristics from discrimination as
enshrined under Section 4 of the Equality Act 2010. The characteristic protected included
disability, age, gender, race, sex, and religion among others.

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Under Section 6(1) of the Equality Act 2010, a disabled person is described as a “person has a
disability for the purposes of the Act if he or she has a physical or mental impairment and the
impairment has a substantial and long-term adverse effect on his or her ability to carry out
normal day-to-day activities” (Office for Disability Issues, 2011, p.5). Based on Section 6 of the
Act, a disabled person is one who has physical, mental impairment or impairment that has
affected their ability to perform normal duties and daily activities.

Section 15 of the Act further explains the various forms of discriminations that emerge from the
disability of the people. For example, S15 (1) of the Equality Act 2010 explains that a disabled
person is discriminated if a person treats the disabled individual unfavourably because of their
disability. However, Subsection (1) is not applicable if the person in question has no knowledge
about that and can prove that he or she could not reasonably have known that the other person
had any form of the disability.

Macmillan Cancer Support (2019) report indicates that "there are an estimated 2.5 million people
living with cancer in the UK, and this number is projected to rise to 4 million by 2030" (p. 3).
Thus, the UK's workplace experiences an annual increase of cancer patients by 3%. The survival
rates for cancer have continued to improve as a result of a proper healthcare system. Also, the
report estimated that approximately 35% of the population in the UK if faced with disability and
poor health after cancer treatment (Macmillan Cancer Support, 2019). With an increase in the
number of people with cancer, there is a likelihood that cases related to discrimination of
employees as a result of disability will increase. In the UK, "Workers in England and Wales with
cancer are protected from discrimination in the workplace under the Equality Act 2010"
(Macmillan Cancer Support, 2016, para1). Therefore, people with cancer are under the Equality
Act 2010 automatically classified as disabled and are protected by the law. Fit to Work (2017)
explained that persons diagnosed with cancer are protected so that they cannot be seen and
treated less favourably when compared to other workers in the organisation. Employers have a
duty of care towards employees with cancer. Also, employers are required to undertake
reasonable steps in ensuring the wellbeing and fitness of workers in the organisation (Fit To
Work, 2017).

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Discrimination can be conducted indirectly, directly, through victimization, and sexual
harassment in the workplace. The employer should watch out for these different forms of
discrimination in the workplace (Fit for Work, 2017). For example, direct discrimination occurs
when a person is treated knowingly in less favourably based on their disability (ACAS, 2018;
Government of UK, 2015). For Indirect discrimination, the employer has policy/procedures put
into place that it harder for persons with disabilities. Harassment does not necessarily have to be
sexual; it could be abusive, distress or humiliation (Fit for Work, 2017). To avoid legal suits,
employers are required by the law to avoid any of the mentioned forms of discriminating
approach in the workplace.
Both the Equality Act 2010 and the Disability Discrimination Act 1995 requires employers to
make reasonable adjustments for employees in the workplace for employees with cancer
(Macmillan Cancer Support, 2016). Also, the employees are by law required to get rid of any
substantial disadvantage that workers with cancer can face in the workplace. The nature of the
adjustments relies on the person, the effect it has on them and productivity and, the condition (Fit
for Work, 2017). Under such circumstances, the law requires the employer to make the necessary
adjustments. ACAS (2017) adds that the employer should take reasonable steps to ensure that the
employer does not face discrimination and harassment in the workplace. The issue of reasonable
adjustments can be explored in the Jones v Post Office1 the case where Clark, Bayton, and Morse
established that the claimant was treated unfavorably by the employer because of his disability.
However, due diligence is required to ensure that a reasonable' decision is made to commit
Disability Discrimination as evidenced in Davies J, I.L.J. 2003, 32(3), 164-184.2 Proper risk
assessments have to be made by medical experts to establish the need for reasonable
adjustments.

In an event that James is deemed to have cancer you will have to consider the Equality Act in
detail. For example, under the Equality Act 2010 and the Disability Discrimination Act 1995, the
employer is required to make reasonable adjustments for employees in the workplace in this case
for James (Macmillan Cancer Support, 2016). ACAS (2017) requires employers to make
reasonable adjustments and to keep in mind that the adjustments are inexpensive, simple, and

1
Jones v Post Office [2001], EWCA, I.R.L.R. 384
2
Davies J, I.L.J. 2003, 32(3), 164-184

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benefit the employee and the employer. Also, you should ensure that he is not discriminated
against because he has cancer. Having cancer makes James disabled and he automatically
becomes protected by the Act. All policies and procedures that can be deemed as discriminating
must be removed to ensure that James is not exposed to any substantial disadvantage in the
workplace (Fit for Work, 2017). In addition, should take all reasonable steps to make sure that
James is not harassed, or discriminated directly or indirectly.

The Facts and Relevant Cases

The Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16/JOJ3 is an important
case that James should consider because it focuses on the dismissal of employees in the
workplace. The Employment Tribunal held that the dismissal was legal to become Mr.
Charlesworth has become redundant and was no longer an asset to the company. Also, Mr.
Charlesworth was not dismissed because of his disability-related absence, but rather on the
impacts he had on the company. As ruled out by the Employment Appeal Tribunal in
Charlesworth v Dransfields Engineering Services Ltd4 case, if it is the case you could dismiss
James based on the impacts that he has on the company.

James should inform you of his medication condition so you could have factual information on
James condition to ensure that in an event of dismissal, the employees' treatment is not deemed
unfavourable treatment. The medical evidence availed should be properly analysed to make
proper decisions as required under the Equality Act 2010. In case the organisation is not satisfied
with the report provided by James on his condition, you could seek a medical opinion from an
expert.

Also, take time and due diligence to establish the effect James absence has on the organisation.
For example, you have pointed out payments towards James and wages paid to another
temporary employee (casual labourer) is affecting the financial situation of the company. In an
event of James' dismissal, it would be purely on the impact that he has on the wellbeing of the
company, and not disability-related absence. In the case, Charlesworth v Dransfields

3
Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16/JOJ
4
Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16/JOJ

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Engineering Services Ltd5 the claimant was treated for renal cancer and was given time to rest.
However, he was made redundant by his employer after closing one of the close branches
because it was unprofitable and therefore not economically viable. The claimant, however,
claimed that the layoff was purely based on his disability and not redundancy. The role of Mr.
Charlesworth's was made redundant on three grounds. One, Mr. Charlesworth's brand was no
longer profitable, hence the need for closure (Employment Cases Update, 2017). Two, the
manager pointed out that the company did not have an alternative position for Mr. Charlesworth,
and for this reason, the dismissal was appropriate. Three, the employer pointed out that there was
a need for the company to make cost-saving decisions.

As explained in Jones v Post Office6 case, you should ensure that James is not treated less
favourably by the organisation because of his disability. Before making the decision, the
employer should undertake proper risk assessments to identify the need for reasonable
adjustments. For example, the employer should establish the form of adjustments to be put into
place for James to feel appreciated and not less favoured in the workplace.

The Lofty v Hamis [2018]7 is the most recent case that you can follow to understand
discrimination and cancer in the workplace. The Employment Tribunal ruled that Ms. Lofty
dismissal was for a potentially fair reason, however, the manner in which dismissal was carried
out, it was procedurally unfair. The Tribunal supported claimants claim for unfair dismissal on
the aspect of disability discrimination, "The Employment Tribunal held that Ms. Lofty's
condition did not amount to a disability as her condition was "pre-cancerous" and did not
constitute cancer; she, therefore, did not have a ‘deemed disability'" (Redmans Solicitors, 2018).
Therefore, the claim for dismissal from the workplace as a result of disability discrimination in
the case of Lofty v Hamis [2018]8 did not amount for the purposes of section 6 Equality Act 2010
(Redmans Solicitors, 2018). However, MS Lofty launched an appeal to the Employment Appeal
Tribunal and the ruling was overturned. According to the Employment Appeal Tribunal, the
Tribunal failed to analyse the medical evidence properly as provided by the claimant. To the

5
Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16/JOJ
6
Jones v Post Office [2001], EWCA, I.R.L.R. 384
7
Lofty v Hamis t/a First Café [2018] IRLR 512 EAT
8
Lofty v Hamis t/a First Café [2018] IRLR 512 EAT

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Employment Appeal Tribunal, there was adequate evidence showing that Lofty was disabled and
required protection. Thus, MS Lofty’s diagnosis was adequate to show that she was disabled and
required the Equality Act 2010 protection. The Employment Appeal Tribunal concluded that Ms.
Lofty’s was disabled and for the purposes of S6(1) of the Equality Act 2010, she needed to be
protected by the law

Advice and Conclusion

Regardless of the possible legal implications, the impact that James absence has on the company
wellbeing will be an effective cause of his dismissal. You should, not to dismiss James because
of his ability in the workplace. The Lofty v Hamis [2018]9case should be useful in showing the
effects of dismissing an employee without proper risk assessment. In Griffiths v Secretary of
State for Work and Pensions10, the Court of Appeal ruled that dismissal of an employee based on
disability-related absences is more likely to trigger the application of the law.

From the analysis, you can dismiss James in an event he is diagnosed with the cancer and he
cannot return to work. This can be supported by the required under the Disability Discrimination
Act 1995 and the Equality Act 2010 as is required to make reasonable adjustments in this case
the payments towards James during his time off which can be seen as disability leave. In this
specific situation taking into account that during James absence you have also had to employ a
temporary worker and this started to affect your business you may dismiss James using objective
justification as this situation is affecting your company creating financial strain, and in this case
reasonable adjustment is not an option as reasonable adjustment means adjustments that benefit
both employer and employee.

To avoid any legal claims in the future and finical damages for compensations, you should
consider the Equality Act 2010. If James is diagnosed with cancer, the law, particularly Equality
Act 2010 protects him as a disabled person. However, to avoid further legal suits, you are
required by the law to avoid any of the mentioned forms of discriminating approach in the
workplace. Presuming that, the cancer does not affect the functionality of James, reasonable

9
Lofty v Hamis t/a First Café [2018] IRLR 512 EAT
10
Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 CA

7
adjustments should be made to accommodate him. As required under ACAS (2017), the
adjustments should make James feel favoured, appreciated, and not discriminated by the
employer and colleagues in the workplace

In case of any future legal advice regarding this matter, please do not fail to contact me. Ensure
that James is not treated less favourably by the company because of his disability. To avoid legal
implications, follow the advice given and in areas you not understand, I will be available for
guidance.

Yours sincerely,

314 873

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References List
ACAS. (2015). Conditions automatically treated as a disability - The Equality Act and Cancer,
MS and HIV [Online] < http://www.acas.org.uk/index.aspx?articleid=5847 [Accessed 3
May 2019].
ACAS. (2017) Disability discrimination: obligations for employers
[Online]http://www.acas.org.uk/media/pdf/i/a/Disability_discrim_legal_obligations.pdf
[Accessed 3 May 2019].
Employment Cases Update. (2017). Charlesworth v Dransfields Engineering Services Ltd
UKEAT/0197/16/JOJ. [Online]
http://www.acas.org.uk/media/pdf/i/a/Disability_discrim_legal_obligations.pdf
[Accessed 3 May 2019].
Fit for Work. (2017). Cancer and discrimination at work. [Online]
https://fitforwork.org/blog/cancer-and-discrimination-at-work/ [Accessed 3 May 2019]
Government of the UK. (2015). Equality Act 2010: guidance [Online]
https://www.gov.uk/guidance/equality-act-2010-guidance/ [Accessed 3 May 2019]
Lawson, A. (2010). Disability and Employment in the Equality Act 2010: Opportunities Seized,
Lost and Generated, Industrial Law Journal, Volume 40, no. 4. Pp. 359–383.
Macmillan Cancer Support. (2019). Statistics fact sheet [Online]
https://www.macmillan.org.uk/_images/cancer-statistics-factsheet_tcm9-260514.pdf
[Accessed 3 May 2019]
Macmillan Cancer Support. (2016). Legal rights about work and cancer [Online]
https://www.macmillan.org.uk/information-and-support/organising/work-and-cancer/if-
youre-an-employer/legislation-about-work-and-cancer.html [Accessed 3 May 2019]
Moses, C. (2017). How Equal is the Equality Act 2010? A Critical Assessment of the Effects of
Harmonisation of Discrimination Law with Regard to Age and Disability Claims.
University of Leicester School of Law Research Paper No. 17-01.

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Office for Disability Issues. (2011) Equality Act 2010 Guidance. Office for Disability Issues,
HM Government.
Redmans Solicitors. (2018). ‘Pre-cancer’ still a deemed disability under the Equality Act 2010
(Lofty v Hamis t/a First Café, EAT) [Online] http://www.redmans.co.uk/pre-cancer-still-
a-deemed-disability-under-the-equality-act-2010-lofty-v-hamis-t-a-first-cafe-eat/
[Accessed 3 May 2019].

Cases
Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16/JOJ
Davies J, I.L.J. 2003, 32(3), 164-184
Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 CA
Jones v Post Office [2001], EWCA, I.R.L.R. 384
Lofty v Hamis t/a First Café [2018] IRLR 512 EAT
Jones v Post Office [2001], EWCA, I.R.L.R. 38

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