In the February edition of COVER, one of the questions put to your [IFA clinic] panel concerned a pe...
In the February edition of COVER, one of the questions put to your [IFA clinic] panel concerned a person who was unable to join an employer's group PMI scheme because he or she had previously had cancer. Among other things, the questioner asked if this was 'fair'. One aspect of the case that was not explored was the question of whether the employer was acting lawfully?
Someone who has had cancer would almost certainly be considered to be disabled under the Disability Discrimination Act (DDA) and come under its protection. A key issue here is whether the person would have been eligible to join the scheme if he was not disabled ' in other words, was the person refused access to the scheme for a reason relating to his cancer/disability?
Under the DDA, employers are required to make 'reasonable adjustments' to accommodate disabled employees. An employer may only refuse to accept a disabled employee into a group insurance scheme for a reason relating to the person's disability, if the employer can show there is a substantial additional cost over and above the cost of providing the benefits for a person without a disability. The employer's ability to meet any extra cost would be taken into account in determining what is 'substantial' and the decision must be based on relevant data from a reliable source. If the employer (and/or the insurer) refuses access to the scheme without reliable data supporting the decision, the employer (and/or the insurer) will be acting unlawfully.
Given that the employee in the example is able to take out personal cover, possibly subject to an exclusion or moratorium, it seems he could easily be accommodated into the employer's scheme on the same basis. This means that ' if the only reason for the refusal was related to his disability ' the employer may well be breaking the law.
If a disabled employee believes he or she has suffered discrimination for a reason relating to his or her disability, there are various options for resolving the issue ' such as referring the case to an employment tribunal. However, perhaps the most sensible approach would be for the IFA to take the matter up with the employer (and/or the insurer) to discuss ways that the employee could be accommodated within the group scheme, perhaps by applying an individual exclusion relating to the person's medical history.
Nick Kirwan is chairman at ABI DDA Working Party and head of marketing and product development at Scottish Provident
