Employment rights of people with a terminal illness

UK employment law provides protections for employees with terminal illnesses under the Equality Act 2010 and it has been confirmed that the UK Government will continue to encourage this flexible approach and employers need to get up to speed.

What to do for terminally ill employees?

Business owners are being urged to sign up to the ‘Dying to Work Charter’ to get the crucial guidance needed and help them provide better protections for terminally ill employees and ensure employees are supported, not unlawfully discriminated against and/or unfairly dismissed.

Long-term illnesses are likely to fall within the statutory definition of disability under the Equality Act 2010. The Act sets out the key elements to determine a disability. These are as follows:

1. Does the employee have a physical or mental impairment?
2. Does this have an adverse effect on their daily activities?
3. Is that effect substantial and long term?

Illnesses such as cancer, HIV and multiple sclerosis are however considered as “automatic disabilities”.

What are the options for terminally ill employees?

• Employees can choose to continue working, even if they have a terminal illness.
• Employees can choose to stop working.
• Employees can discuss options with their employer about how they want to proceed at work.

“As with most things employment based it starts hopefully with a sensible conversation so that employers and employees can come to the arrangement which suit them both,” said Senior Associate Employment Law Solicitor, Carley Dhand.

“Employers need to be aware that terminally ill staff have employee rights and if any staff member feels they have been mistreated they need to remember their rights,” advised Carley.

Terminal illness and Employment Rights

1. Protected Characteristics:
   A terminal diagnosis is highly likely to be considered a disability and so attracts special protections under the Equality Act 2010. Employees with a disability are protected from discrimination, harassment, and victimisation in the workplace and employers are legally required to make reasonable adjustments to support the employee at work.
2. Reasonable Adjustments:
   Employers must make accommodations to help terminally ill employees remain in work if they wish to. Examples include:
   • Adjusting working hours or providing flexible working arrangements.
   • Reducing workload or reallocating duties.
   • Allowing time off for medical appointments or treatment.
   • Providing special equipment to facilitate work.
3. Protection from Discrimination, which includes:
   • Direct discrimination: Treating an employee less favourably because of their terminal illness is unlawful.
   • Indirect discrimination: Workplace policies or practices that disadvantage terminally ill employees could also be unlawful unless the employer can justify them.
   • Discrimination arising from disability (doing something, not because of their illness/condition, but because of something caused by the condition/illness)
   • Harassment: Bullying or unwanted conduct related to the illness is prohibited.
   • Victimisation: Retaliating against an employee for asserting their rights is unlawful.
4. Sick Pay:
   Employees with terminal illnesses are entitled to statutory sick pay (SSP) or contractual sick pay, depending on their terms of employment. If the employee is unable to work due to their condition, they may eventually transition to benefits such as:
   • Employment and Support Allowance (ESA).
   • Personal Independence Payment (PIP).
5. Dismissal and Capability:
   Employers must handle dismissals sensitively and follow fair procedures.In cases of long-term absence, case law has established that fairness will involve the following key elements:
   • Ascertaining the up-to-date medical position.
   • Consulting with the employee; and
   • Considering the availability of alternative employment.

   If these have been denied you then you have rights.

6. Duty of Care:
   Employers’ have a duty to take reasonable care of the health and safety of their employees. This extends to mental as well as physical health. These duties are implied into all contracts of employment.
7. Practical Advice for Employees and what you should do:
   Employees should inform their employer about their condition to enable adjustments to be made, but they should also then be informed about the support they can access, of course it does depend on the size of the organisation you work for.  Advice can also be obtained from your HR department, trade union, or organizations like ACAS or Citizen's Advice Bureau if your employer does not have HR.

“Whilst many employees with a terminal illness will have a disability and therefore be protected under the Equality Act 2010, I do feel that sometimes people are unaware of the protections afforded to them and the guidance is not understood by employers.

“It is still legal in this country to sack a terminally ill worker on the grounds of capability and I have represented clients whose employers have terminated their employment for reasons of capability when this should not be the case.”

“Chronic illnesses such as cancer would entitle employees to automatic protection under the Equality Act, and that this would be the case for the majority of people with a terminal illness but as always communication between staff and employers is vital,” added Carley Dhand.

How can we help?

For legal advice on your employement rights or other aspects of employment law contact our solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.