Employees with a Terminal Illness – Your Responsibilities as an Employer

Managing employees with terminal illness is a sensitive issue but for business owners unfortunately this cannot be ignored.

Terminal illness is likely to afford an employee or a worker protection under the Equality Act 2010 as the condition is likely to be deemed a “disability.” The consequence is that the worker or employee has the right not to be treated less favourably at work. In addition to this the employer must consider reasonable adjustments to enable the employee or worker to stay in work.

Less favourable treatment includes the following:

• direct discrimination (essentially doing something because of the condition);

• indirect discrimination (a policy or practice that has a more detrimental effect on people with the condition);

• discrimination arising from disability (doing something, not because of the condition, but because of something caused by the condition);

• failure to make reasonable adjustments (failing to make reasonable changes to the workplace or the role to lessen the impact of the condition);

• harassment (unwanted conduct relating to the condition); and

• victimisation (doing something because the individual has complained about discrimination.)

The situation of the employee or worker with a terminal illness is complex. The individual may not be able to adapt to an adjustment and due to the degenerative and fluctuating nature of the condition, what is “reasonable” one day may not be so the next. Also, the termination of their employment contract due to incapability is likely to mean the loss of entitlement to certain benefits, including death-in-service payments.

It is important for business owners and HR personnel to be aware of the importance of the following:

Contracts of employment, employment law policies and procedures & staff handbooks

• Documents should be compliant with law and drafted in a way to afford business protection.

• Sickness absence management policies and procedures should clearly explain the various options for both management and employees.

• Managers should have training on these documents and policies and so they are aware of the sensitivities of dealing with a case involving terminal illness.

• Guidance should ensure that managers explore benefit options for the person concerned, including early ill-health retirement and access to any support services, such as an employee assistance program or occupational health services.

• Bespoke policies and training can cover key areas such as actions on diagnosis; working during treatment; time-off during treatment; after treatment; disability caused by cancer; giving up work; and potential unfair treatment.

Managers

• Managers are often the first point of contact in the workplace for an employee or worker who has received a terminal diagnosis.

• Line managers therefore have a key role to play in managing the employee or worker and the team within which they may work. They need to be given the tools and training to perform this role sensitively and effectively.

• Managers are central to discussions about work adjustment, work retention and workload.

• Line managers should also be encouraged to obtain an understanding of the progressive illness and its likely effects on the employee or worker, including what adjustments might be considered. This includes understanding the possible fluctuating nature of a condition and the fact that an employee may need additional time off for medical appointments/treatments.

HR function

• HR and employment law support is crucial to managing an employee with a progressive illness. Farleys Solicitors Employment Law & HR team can support an existing HR function in your business or your business can outsource management of this aspect to us.

• This subject is a complex HR issue. As stated, the person’s condition is likely to be a “disability” under the Equality Act 2010. This means the organisation must ensure it does not treat the person less favourably. In addition, your business is tasked with exploring reasonable adjustments, for example, changes to hours and working patterns, reallocating duties and granting time off for treatment. Individuals should be allowed to work as long as they wish, subject to medical advice and any health and safety factors.

• A business continues to have a duty of care to the employee, so should ensure that they are supported, for example, by highlighting the availability of any employer-provided health services, such as occupational health.

• If an individual is not able to work, or chooses not to continue in work, the HR function can facilitate discussions about exiting employment.

Occupational Health

• Occupational health services have a vital role to play in supporting staff through terminal illness and, crucially, in helping line managers and businesses to perform their duties.

• If your business does not have an occupational health function, Farleys Solicitors Employment Law & HR team have contacts and can assist to facilitate this.

• OH professionals can provide managers with information and support, including guidance on the employee’s condition and how it might affect work ability, advice on work adjustments and fitness for work.

• OH can support employees (and their families) as they manage any ongoing treatments and declining ability in situations where the employee decides to continue working. This might, for example, cover the side effects of cancer treatments, many of which may not become apparent until after treatment has finished.

• If an individual is not able to work, or chooses not to continue in work, OH services can help them explore eligibility for benefits.

Reward and Benefit Issues

• Business owners and HR personnel will need to be mindful of reward and benefit factors, including statutory sick pay, contractual sick pay, group income protection, critical illness cover, private medical insurance, occupational pension scheme benefits, death-in-service benefits and employee assistance programmes (EAP).

• Contractual sick pay schemes vary but many will provide for a period of absence on full pay, tapering off so that all contractual sick pay ends after, for example, 12 months. Businesses will need to consider whether or not it is appropriate to extend contractual sick pay on a discretionary basis in the case of an employee with a terminal illness

• Where there is a Group income protection scheme, employees unable to work for health reasons can be provided with an income which often kicks in after contractual sick pay is exhausted. It typically pays a percentage of normal salary and starts when an employee has been off work for a defined period.

• The provision of death-in-service benefits sometimes creates something of a moral issue for a business and needs very sensitive handling. Under the terms of most schemes, an employee has to die in service to benefit, whereas many employees with terminal illness have been managed out by a business by this point, often after a period on paid/unpaid contractual sick leave.

Farleys employment law solicitors can help your business by providing commercial employment law and HR advice and support on sickness absence and employees with terminal illness. Advice and support include diagnosis; working during treatment; time-off during treatment; after treatment; disability discrimination, termination of employment, ill health exits and severance packages and settlement agreements.

Contact Farleys Commercial HR & Employment law team on 0845 287 0939 or send your enquiry through our online contact form and one of the team will get in touch with you.