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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 53663
Experience:  Qualified Solicitor
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My brother is terminally ill with lung cancer as his

Customer Question

My brother is terminally ill with lung cancer as his employers now want him to take ill health retirement and sack him from his job he was diagnosed in Feb 2015 and not worked since they have a medical report from his GP which states he has 12 months or less
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Hello what is your query about this situation please?

Customer: replied 2 years ago.
Since he has not worked for the company since February 2015 (when he was diagnosed as terminal). Can they legally dismiss him from employment? He has been undergoing chemotherapy and radiotherapy treatment which of course makes him weak and strong unable to work.
They provided him with 6 Months of support, which has now come to an end.
He also qualifies for the death in service policy under their contract, however, we fear they are urgently trying to dismiss him to avoid paying him out when he does die.
They are also sponsors for cancer "race for life" which frustrates us even more. We have tried reading through the discrimination act and disability act but it's a bit overwhelming.So we would just like to know can they legally dismiss him for being terminally ill with cancer, and what should we do next?Many thanks
Expert:  Ben Jones replied 2 years ago.

Hi there. Thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

Expert:  Ben Jones replied 2 years ago.

Many thanks for your patience. Capability, where an employee is unable to perform their job due to ill health, is a potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications.

Whether a capability dismissal is fair will depend on the particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.

When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:
• What was the nature of the illness
• Was the employee consulted over their position and did the employer try to ascertain the true medical position
• What was the likelihood of the employee returning to work or the illness reoccurring in the future
• The effect a prolonged absence would have on the business and the workforce
• The availability of other suitable employment that the employee could do instead
• If the employee has been absent long-term and is unlikely to return in the foreseeable future the employer should consider claiming under the terms of any Private Health Insurance policy or ill health retirement that is available.

Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option.

So if the dismissal took place because the employer was trying to avoid payment under some insurance or other sickness cover or death policy, the dismissal is likely to be unfair and/or discriminatory. The discrimination aspect would come under the Equality Act which classifies someone suffering from cancer as being disabled and provides protection against detrimental treatment.

This is your basic legal position. I have more detailed advice for you in terms of the options you have if the dismissal still takes place, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Expert:  Ben Jones replied 2 years ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Expert:  Ben Jones replied 2 years ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.