It might surprise some people to learn that a terminally ill employee can legally be dismissed in the UK. While the 2010 Equalities Act offers some protection, employers can still dismiss a terminally ill employee if they fail a capability assessment with ‘reasonable adjustments’.
The Trades Union Congress (TUC) is currently running a campaign to have terminal illness recognised as a 'protected characteristic’, which would grant employees a protected period where they couldn’t be dismissed as a result of their illness.Its petition has been supported by organisations such as E.on, the Royal College of Midwives and Unite the Union.
The Dying to Work campaign says the protection would give employees the peace of mind to know their employment and financial security were guaranteed.
But what do you need to know about your organisation's responsibilities under the existing legislation?
Terminal illness: compassion & respect are paramount
Firstly, there can be few experiences in life worse than being diagnosed with a terminal illness, so it's vital that employees who find themselves in this position are treated with compassion and respect.
Under the Data Protection Act, you cannot reveal their condition to their colleagues without their permission. You might assume an employee with a terminal illness would want to stop working, but that's not always the case; employment can offer stimulation, dignity and normality at a time of great upheaval.
If an employee does want to continue after a diagnosis, you must be prepared to give them some leeway and flexibility and take their condition into account in every aspect of their employment. You can’t reprimand them for taking time off for doctor’s appointments or give them a bad appraisal for not meeting targets without considering the impact of their illness, for example.
Make reasonable adjustments
A person with a terminal illness will likely be deemed in law as being disabled, so an employer has legal obligations under the Disability Discrimination Act 1995 and the Equality Act 2010. This means you must make “reasonable adjustments” to support your employee in the workplace.
While there's no set definition of what “reasonable adjustments” might constitute, it could include flexible working arrangements (such as home working), reduced hours, giving extra time off for medical appointments, providing equipment to make work easier or even moving the employee to a job with less responsibilities (with their consent).
Dismissal: a last resort
Dismissal should always be a last resort and you should consider as many ways as possible to help the employee continue to work, if that is what they wish.
But ultimately if after a capability assessment it is determined that the employee can’t do their job, either in spite of the reasonable adjustments you have made for them or because none can be made, you can legally dismiss them. Of course this must be done fairly and reasonably and with sensitivity.