Terminal illness

[PlainSpeakingStraightTalking]

A quick one please.

57 yo Person with 25 years service has a terminal illness awaiting transplant. Without transplant they will not recover. No guarantee of a transplant, nor recovery if an organ is found.

Work situation: Off now for 18 months, 6 months full pay, 6 months SSP, now on no pay BUT has use of a company car, lease due to expire in a couple of months.

Employer is a sub company of a larger national chain. Employer not particularly in contact, certainly no weekly or monthly catch up calls. Pay slip and birthday cards sent, no invitations to office events though.

My queries are

1.. how long can the person be indefinately employed - my understanding is they cannot dismiss or offer redundancy, but employment stops any other benefit such as ESA being claimed

2.. can both ESA and PIP be claimed?

3.. we were told (ad hoc) that the company car cannot be with drawn, but is there any obligation by the employer to renew the lease when it expires, seeing as the person is unable to work. The car was part of the salary package, not needed for work related use per se.

Many thanks if you can point me in the right direction or give me the appropriate legislation to look up - ASAS site isnt particularly helpful.

many thanks

I can only answer question two. Yes, ESA and PIP can both be claimed. It would probably be something called "New Style ESA which is based on NI contributions in the last two applicable tax years. I'm unsure if those two tax years are now 2017-2018 and 2018-2019 or still 2016-2017 and 2017-2018. If it's the former and it's calculated that employee is ineligible then a claim for Universal Credit can be made. This is based on household income though so if a partner is earning the employee may not be eligible. It is also means tested so savings etc will be taken into account.

PIP is completely non means tested and can be claimed alongside any other benefit or by itself.

Hope that helps

1. The employer can employ them as long as they want. But they are under no obligation to do so if there is no realistic prospect of return to work.

1. No idea about benefits

1. Is there a policy/contract clause that deals with company cars on long term sickness absences? Withdrawing a contractual benefit could be argued as disability discrimination, especially if that isn’t specified in a policy/normal practice.

Why do you think they can’t dismiss the person OP?

I would have thought they could eventually be dismissed because they aren’t capable of working?

Company car, it depends what their contract says.

Sorry about the person who is unwell. Can they consider taking early retirement on the grounds of ill health. Marie curie have information on being ill and work .

1. They can carry on being employed for as long as they & the company wish to carry on the contract. Best practice though would be for the company to keep in touch & get updates on their condition. They may feel awkward about doing this though due to the nature of the employee's illness & terminal dignosis. If the person is well enough, it may be worth them contacting HR just to update them & find out what the company's thoughts are.

As an employer it's often hard to know if contact is desired and if it may feel like an intrusion. There is an option to mutually "frustrate" a contract - ie come to a mutual agreement that the employee will not return to work and bring the contract to an end. This is one option to consider.

1. Re company car - I think this would depend on the individual contract of employment, but at a guess I would say that possibly as the person is not actually attending work, the employer may try to reclaim the car when the lease expires. Not certain of this though - again probably best checking with HR .

ACAS have a helpline 0300 1231150 that anyone can ring for free advice if you find the website difficult to negotiate.

Sorry to hear of the person concerned's diagnosis.

Others questions have been answered but wanted to highlight that as it is a national corporate company, it may be worth checking if the person has life assurance as a benefit offered by the company. Sometimes this isn’t known by employees as it is such a morbid and rarely used benefit.

We dealt with a very similar situation and kept the employee employed until death so that his family benefited from the life assurance pay out (4 times basic salary in line with our policy).

All benefits, including holiday accrual, continued until they died. It was an awful situation but it was one that was dealt with very sensitively by the manager and myself (HR) as discussions about what we legally could do (eg. capability ill health dismissal) and what we were going to do (continued employment) were discussed with employee and his wife.

Can they consider taking early retirement on the grounds of ill health

Certainly an option except, the sub company was a private company, bout out by a larger PLC about 3 years ago. As such, the pension scheme has only been running since recent legislation obliged them to do so.

it may be worth checking if the person has life assurance as a benefit offered by the company. Sometimes this isn’t known by employees as it is such a morbid and rarely used benefit.

Contracts weren't TUPE'd, and it's a heck of a job accessing old paperwork. It doesn't help that there are very few original employees from 25 odd years ago still in service.

Why do you think they can’t dismiss the person

Because terminal illness is covered under the old DDA, and subsequent legislation. I might be misreading MarieCurie :

Although you may not think of yourself this way, the law states that a terminally ill person is likely to be considered ‘disabled’. This means your employer can’t sack you or find an excuse to make you redundant because of your illness. By law you don’t have to tell your employer about your condition, but it usually makes sense to. This is so you can get the support you need and become fully protected by discrimination law if you’re then unfairly treated as a result of something related to your disability in England, Scotland or Wales (the Equality Act 2010).

www.mariecurie.org.uk/help/support/diagnosed/recent-diagnosis/about-work

Capability (including on ill health grounds) is a potentially fair reason for dismissal. If someone isn’t going to be able to return to work and no adjustments can be made to support them returning of course it may be fair to dismiss.

They can't sack someone "because they are ill", however they can terminate a contract if the person's sickness absence is extremely lengthy and there is no likelyhood that they will be able to return to work within a reasonable time frame.

Of course they can be dismissed if they are unable to fulfil their contractual obligation of going to work.

Capability (including on ill health grounds) is a potentially fair reason for dismissal. If someone isn’t going to be able to return to work and no adjustments can be made to support them returning of course it may be fair to dismiss

^This.

When we say a fair reason to dismiss, it is a legal definition we're referring to as it is one of 5 fair reasons that organisations are allowed to dismiss:

1. a reason related to an employee's conduct
2. a reason related to an employee's capability or qualifications for the job
3. because of a redundancy
4. because a statutory duty or restriction prohibited the employment being continued
5. some other substantial reason of a kind which justifies the dismissal.

Organisations still have to follow a fair process and, as others have said, consider reasonable adjustments to protect themselves from disability discrimination claims under the Equality Act.

Thank you , you've given me/us some things to think about.

I just need to be prepared when the conversation comes up, as it undoubtedly will at some point. As I say, I think the car lese is up for renewal within the next couple of months, that will possibly be the agent for change.

Their contact has been atrocious really. DHs line manager hasn't spoken to me since Jan 2018, and never to my DH (he was on life support for some time) , and his MD visited once in April 2018. Its a case of limbo. The car got pranged in a hit and run, and its dented but drivable, the MD said he wasn't prepared to pay the excess at that point - this implied to me that he would do any repairs before handing it back to the lease company. I'm not inclined to rock the boat at the mo, the car is useful, but I will have to face a termination of contract sooner rather than later. .

There is a form you can get from your doctor, which officially states that a person has less than six months to live.
With this form (which my loved ones doctor had never heard of!) you can claim PIP quickly and easily, and bypass many of the questions.
It doesn't matter that the person may well live longer, the claim will carry on being valid.

You can also fill out the forms under these circumstances on the claimants behalf, and without their knowledge under the 'special rules'.

My loved one had cancer, so I'm not sure how it might work for you and yours, but its probably worth checking out.

Please don’t rely on a medical charity for employment law advice. This is terribly inaccurate and misleading- “the law states that a terminally ill person is likely to be considered ‘disabled’. This means your employer can’t sack you or find an excuse to make you redundant because of your illness.”

A condition being a disability does not mean any such thing. It means the employer is obliged to make reasonable adjustments to facilitate a return to work, it doesn’t mean they have to employ a disabled person indefinitely.

@oldandworn out - love the username - kind of sums me up at the moment.

We have PIP in hand, as its not means tested.

DH is on the standard transplant register. Might wait a day might, might be a year, 20% never get a call. We're just in limbo

Thank you all for your help and kind words

I’m so sorry op I posted insensitively.

I’m sorry your DH and you are in this position.

However, I’d echo what flowery said. The advice from Marie Curie is atrocious. And wrong.

Is your DH able to contact his work or can you do so on his behalf?

You need to establish whether it is a terminal illness rather than a life limiting illness though. Terminal denotes the fact that the diagnosis is terminal, i.e. there is no hope of recovery ever and the person will inevitably die. Whereas in your DH’s situation he requires an organ transplant and although that is tentative and even recovery following potential transplant has no guarantees, the illness would not necessarily be considered to be terminal iyswim.

Having said that, if he is likely to be incapable of work for the foreseeable future or ever even, does the company have any kinds of policies with regards to pensionint off their employees? A friend is in a similar situation in that he has a condition which deteriorated to the extent that he can no longer work. So his employers pensioned him off e.g. he is essentially medically retired. He does have to go through assessments every five years or so, and he says he does fear that one day someone will say he’s capable and withdraw that payment he receives once a month.

It’s something worth looking into though IMO.