At some point every business will be impacted by an employee who comes in with the dreaded words that they are either going through tests for cancer or they have had a diagnosis.
So, what is the position and how should a Company manage the situation? The simple and generic answer is that the employer must be sensitive, show understanding but above all recognise that every individual will deal with the situation differently so one message is loud and clear – “one solution does not fit all” .
Is there a statutory requirement for a Company to have a cancer policy?
No – but clearly best practice would suggest that it is sensible. Furthermore, the bigger the Company, the greater the need for some guidelines or policy on managing the situation but in small Companies, there is a possibility that a Cancer policy could sit on the shelf gathering dust.
The advantage of having a policy and/or set of guidelines is that they will provide some form of consistency of approach. The flip side is that policies can be quite restrictive and “black and white” and there isn’t a standard text book solution although no doubt you could ask your AI software to write a letter to an employee with cancer but it will probably leave a lot to be desired.
When dealing with a situation with an employee with cancer, there has to be an element of flexibility in your approach and a degree of management discretion.
But flexibility and management discretion can be interpreted differently which could leave an employee feeling they have been treated less fairly than a colleague. So, whether you have a policy or set of guidelines in place, most importantly ensure consistency in approach.
Do you have to pay an employee with cancer?
You are required to pay the employee in accordance with their terms and conditions so, if an employee is only entitled to receive SSP during a period of absence, that is all you are required to pay.
If the employee has enhanced terms for payment during sickness absence ie 3 months full pay and 3 months half pay – that’s what you need to pay. Do what the contract says as a minimum.
In many small businesses, there will be employees who have never had a contract and in that situation, the default position is to pay SSP and enhance at your discretion although this might be messy if the Company has always paid employees during periods of absence despite not being required to contractually and it could be argued that there is an element of “custom and practice”.
Aside from ensuring that you pay an employee with cancer during periods of absence in accordance with their contract, it is advisable not to make open ended promises. On numerous occasions, wild promises have been made “don’t worry, we’ll pay you whatever……..” Such promises are not sensible because the employer has no idea how long the situation will go on for and it might be a financial commitment that the business cannot afford, bearing in mind they may have a Temp covering the absent employee.
Worrying about a cancer diagnosis is bad enough so the employee will be nervous about the impact on their job and pay. The employer should manage expectations in a responsible manner, avoid rash promises and commit to keeping the sick pay situation under review if you are exercising discretion.
Can you dismiss an employee with cancer?
Yes, but it is risky because there is a strong likelihood that the employee would bring a claim for disability discrimination because cancer is regarded as a condition that can give rise to disability discrimination.
If the employee is being dismissed because of their cancer, this would be very likely to lead to a claim of direct discrimination on the grounds of disability. There will be situations where a business dismisses an employee who has cancer but there is a very subtle difference in terms of dismissing an employee IF they have cancer and dismissing an employee BECAUSE they have cancer.
Either way, the employer must be mindful of the risks associated with cancer related dismissals and regardless of the circumstances, the employer would still be required to show that they have been reasonable.
What might colleagues think?
Whilst you should always be fair and reasonable, fellow employees will observe to see how an employee is being treated. Colleagues will be sympathetic and they will take a dim view if they see a colleague being treated in a shoddy way because, one day they might have cancer. So, whatever you do, remember that your actions will be judged.
Can you dismiss an employee in their probation period if they disclose they have cancer?
Yes, but again, this is not without risk as the employee would potentially bring a claim for disability discrimination. So many people say that as the employee has less than 2 years service and is within their probation period, there is no risk but this is untrue and incorrect.
Adrian Berwick provides HR Support to businesses and if you want help managing a difficult issue involving an employee with Cancer, contact Adrian on 07885 714771 or firstname.lastname@example.org