Key Takeaways
- The law protects those with cancer: Employees with cancer are protected against unfair or discriminatory dismissal based solely on their illness.
- There are some situations where termination is lawful: There are some instances in which an employee with cancer can be fairly dismissed, including redundancy.
- Employers should follow proper protocol: An employer should terminate an employee fairly and act reasonably while doing so, following dismissal procedures that have been previously set out in writing.
While terminating an employee is rarely a nice experience, it can feel particularly daunting if the employee has cancer. If proper procedures aren’t followed, or the employee with cancer has been dismissed unfairly, it can have significant repercussions and put the employer at risk of a tribunal claim.
This guide from Perci Health outlines the law around dismissing an employee with cancer, discusses some of the circumstances where termination is considered lawful, and offers advice to employers on how to approach the situation fairly and with compassion.
Can you terminate an employee with cancer?
An employer cannot terminate an employee with cancer solely because of their diagnosis but an employee with cancer can be dismissed for the same reasons as any other employee under law and in line with their workplace’s policies and procedures.
For example, if an employee has cancer, they cannot be terminated because they need to take time off for treatment. However, they can be dismissed if they have been found guilty of gross misconduct, such as theft from the workplace or physical violence against a colleague.
What are the legalities of terminating an employee with cancer?
When it comes to cancer and employment law, employees with cancer are protected by the Equality Act 2010 in England, Scotland, and Wales, and in Northern Ireland, they are covered by the Disability Discrimination Act 1995. These pieces of legislation class those with cancer as disabled; this means that an employee with cancer cannot be treated less favourably than others due to their condition. This protection continues even after an employee with cancer is in remission.
When terminating an employee with cancer as a result of a disciplinary matter, employers should follow a fair and professional protocol, such as Acas’ Code of Practice on disciplinary and grievance procedures. If it is a redundancy process, and they have worked for the company for more than two years, the process must include a consultation with the employee.
All dismissal processes should follow the company’s policies and procedures, which should have been made available to the employee in writing at the start of their employment.
In what situations can terminating an employee with cancer be lawful?
While an employee with cancer cannot have their position terminated due to their illness, there are some situations where dismissing an employee with cancer is considered fair and lawful.
End of contract
If an employee with cancer was employed on a fixed-term contract and this contract period has come to an end, then an employer doesn’t have to give any notice. Examples of this include maternity cover or Christmas temp work.
However, if the contract was longer than two years, or the employer wishes to terminate the contract early, there are different stipulations. After two years, an employer must demonstrate a fair reason for dismissal. If they want to end a contract early, the ability to do this must have been written into the contract and the correct notice period must be given.
Long-term illness
Managing an employee who is off sick with cancer or any other illness can be difficult, especially if it means finding cover for their role or incurring additional costs. That being said, an employer cannot terminate an employee with cancer so they can employ someone else.
An employer can terminate an employee with cancer who is on long-term sick leave if their condition makes it impossible for them to do their job. Before doing this, however, an employer should look for ways to support their employee, make reasonable adjustments and/or give them adequate time to recover.
Redundancy
Redundancies usually occur if a role is no longer needed, the business is facing significant restructuring, or the workforce must be downsized due to financial restraints. All employees who fall within the selection criteria for redundancy should be considered, irrespective of whether they have cancer or are going through treatment. So long as an employer can show that the employee was selected on these terms and not because of their illness, the redundancy will be considered fair.
If an employee living with cancer is too unwell to go through a redundancy process, be it attending a meeting or preparing a CV, they can request that it be postponed as a reasonable adjustment.
Statutory restriction
An employee with cancer can be dismissed if continuing to employ them would break the law. For example, if a doctor says that cancer has made the employee unfit to drive because it affects their cognitive thinking and their licence is revoked, they wouldn’t be able to continue working as an HGV driver.
Extenuating circumstances
There are situations in which it would be impossible to continue to employ an individual with cancer, or any other employee for that matter. For instance, if the business premises have collapsed and, therefore, no work can be carried out. In this case, termination is lawful.
Dismissing an employee with a terminal illness
A terminal illness is an illness or condition that cannot be cured and is likely to lead to a person’s death. Cancer is not always terminal but advanced or later-stage cancer can be. Dismissing an employee with a terminal illness solely due to their condition is unlawful, as is forcing them to retire or resign. However, you can dismiss an employee with a terminal illness if there is a valid reason, like those discussed in the section above.
If you’re an employer terminating an employee with cancer
If you’re an employer and you are in the position of dismissing an employee with cancer, you might feel guilty and concerned for the employee but must still act lawfully and fairly, following the correct procedures. You should also:
Seek legal advice beforehand: A professional and impartial review of the circumstances will make sure you consider all options, and that the dismissal is fair.
Tell the employee about their termination in private: This should be done face to face where possible, but if the employee is currently on leave, a phone call is acceptable. Explain the situation to them in a clear, concise manner and be transparent about the reason for their termination. Don’t be ambiguous or allow room for interpretation of what you mean.
Consider your language carefully: Avoid using the phrase ‘you’re fired’ or other blunt terminology, as this may create an emotionally charged situation. Instead, use language that is clear but considerate, and that shows you care for and respect the employee.
Document the entire process: This is essential for company reference and in case the employee comes back to you with any questions or wishes to raise a claim of unfair dismissal.
Signpost them to support: Losing their job may affect an employee’s wellbeing and finances significantly. Give them information on people, organisations or benefits that might be able to provide support such as Macmillan, Employment and Support Allowance (ESA) or Universal Credit.
Inform and support colleagues: Other employees should only be informed after the employee being terminated has been told. The way you tell other staff should be handled gracefully, as supporting a coworker with cancer can be emotional, and they may need some help adjusting.
If you want to know more about how, as an employer, you can support employees with cancer and their families, get in touch with Perci Health. We offer support to those living and working with cancer, helping them to navigate every stage from diagnosis, to treatment and beyond.