We have an employee who has recently been diagnosed with pancreatic cancer. His illness was sudden after it took a while for the hospital to discover. He started to be absent from work six weeks ago. We only pay SSP, so he has been using up annual leave, but from next month we plan to stop paying him. The contract has not officially ended yet, but going forward he obviously cannot work for us anymore. We suggested he might like to resign. We have never encountered situations like this before, and it has dropped a massive bomb among all of us.
Peter replies:
I suspect the bombshell is not as great as the impact it is having on his life and his friends/relatives. Being diagnosed with cancer can be one of the most difficult situations that anyone has to face. It can cause great fear and worry, and can affect every aspect of life, including the ability to work.
The reality is that most people with cancer continue to work. You may well find that he really wants to keep working for as long as he feels able to, and he needs to be earning money. His age and his financial status, as well as his family situation, will play a part in what he decides to do. You can’t just assume he will automatically not carry on working. Dismissal is by no means obvious, nor is it reasonable or supportive. A likely outcome could be disability discrimination and unfair dismissal claims. Suggesting someone resigns in these circumstances is a strong case for a constructive dismissal claim. In the absence of any (clearly favourable) agreed arrangements, in such cases it is very rarely in the employee’s interests even to think about resigning from their employment.
Under the Equality Act, cancer is classed as a disability from the date of diagnosis. This employee is automatically protected against discrimination, as a result of their condition, and, against failure to make all reasonable workplace adjustments to accommodate it and its effects.
There are many straightforward steps that employers can take. The simplest and easiest way you can help staff members with cancer is to keep in regular contact with the employee. If the prospects are promising, plan their return-to-work carefully with them. Reasonable adjustments, such as flexible working arrangements and a phased return-to-work, can ease the transition back to work.
The last thing employers should do regarding a valued employee, who is having to cope with such a devastating health condition, is to add fears about losing their livelihood as well. The best thing to do, as a first step, is meet him and find out what he would like to do, and what he thinks he will be capable of doing. If he is incapacitated in hospital, then a referral to an Occupational Health Assessor is clearly impractical, but you might find out all you need to know from a hospital visit and talking to his support network, some of whom may be his work colleagues.
Pancreatic cancer can be very serious. If he has been diagnosed late, his prospects are poor. Even if you do decide to dismiss, then I would not terminate his employment until after all SSP had been paid (or paid upfront). He will continue to accrue holiday, but that’s about the only cost, unless there are also some staff benefits you are paying for. Hopefully you don’t have to think about the effect of termination on death benefits, but this has to be faced. Dismissing an employee to deprive their relatives of life assurance seems unusually heartless, and probably very risky. Do not underestimate that work colleagues will also judge how fairly the employee is being dealt with. If little or no support is forthcoming, it says a lot about the organisation, and may encourage employees to find a more caring employer.
Ideally, someone needs to get alongside this employee and their loved ones and agree a way forward that’s both entirely compliant with employment law, and is fair and reasonable in everyone’s interests. Be honest, and tell him that this is a new thing for you and the organisation, and you need guidance to help manage the situation. In your meetings, you will need to aim for a balance of compassion and practicality.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
