(6 years ago)
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Lord Balfe
To ask Her Majesty’s Government what steps, if any, they will take to prevent workers being dismissed from their jobs following diagnosis of a terminal illness.
Lord Balfe (Con)
My Lords, I begin by praising the work of the Government and, in particular, the Minister for Disabled People, Sarah Newton, for their support for the TUC Dying to Work campaign and for encouraging employers through the disability confidence scheme to adopt the TUC voluntary charter. I also wish to mention my good friend and colleague, Pauline Latham MP, who sadly cannot be with us today but has done a lot of work at that end of the Corridor, as has, in a slightly different context, Madeleine Moon on behalf of people suffering from motor neurone disease.
The TUC charter, as many noble Lords will know, has been a great success, with almost a million workers protected and companies such as Rolls-Royce in Derby, Bombardier, Legal & General, Santander, TSB, Lloyds, Weetabix, E.ON and the Royal Mail all signing up to demonstrate their commitment to protect and support their terminally ill workers.
While the Government’s support for the charter is commendable, not every employee is fortunate enough to be employed by such a supportive employer. Jacci Woodcock, the patron of the TUC Dying to Work campaign who I am delighted to say is with us today, faced significant problems after she informed her employer of her diagnosis of terminal breast cancer. Ms Woodcock is not alone, and therefore I believe that there is a need to strengthen the provision that is afforded to terminally ill workers.
Under the Equality Act 2010, it is unlawful to discriminate on the basis of protected characteristics in certain areas of life, including employment. Anyone who is diagnosed with a terminal illness will almost definitely be covered by that definition of disability. However, within the Equality Act, employers retain the ability to dismiss a disabled worker on the grounds of capability following a reasonable adjustment. While this is clearly reasonable in standard cases of disability, where the employee has the opportunity to learn new skills and adapt to the adjustments made, I am sure that noble Lords will acknowledge that terminally ill workers find themselves in a fundamentally different situation. First, their condition is necessarily degenerative, so any adjustments made for them which may be reasonable one day are perhaps not reasonable the next. There can also be significant differences and life expectancies between, say, a cancer diagnosis and one of motor neurone disease. Therefore, there is a need for a very different approach.
Secondly, such procedures can be stressful. I am sure that noble Lords would agree that such additional stress and strain is very unwelcome at such a difficult time and, indeed, may exacerbate the health issues being faced.
Finally, when a terminal diagnosis is made, people’s first thoughts are often with the loved ones they will leave behind. People understandably want to make sure that their nearest and dearest are financially secure. Many people currently have death-in-service schemes or life assurance as part of their contracts of employment, and these often pay out significant sums. However, should a terminally ill worker be dismissed in their end-of-life period, they would lose not only their job but their entitlement to these benefits.
Despite the clear need to provide additional protection for terminally ill workers, I can understand the Government’s reluctance to begin amending the Equality Act. However, I think this could be done with a suitable statutory instrument. The TUC has received legal advice that I have been made privy to, and am happy to share with the Minister, which suggests a sensible way forward without the need to amend the Act. The Secretary of State can lay regulations that determine the circumstances in which an employee is incapable of carrying out their duties due to ill health. It would still be reasonable for an employer to retain such a person in their employment, and not to dismiss them, where that employee is disabled by a terminal illness.
In the Social Security Contributions and Benefits Act 1992, terminal illness is defined as being where death is expected within six months. This definition could be maintained. However, should the Government wish to pursue this course of action, a protected period of two years might be more appropriate, to ensure that employees are not concerned that their legal protection will imminently expire.
Colleagues across the House may be concerned that such a proposal might put additional strain on small and medium-sized enterprises. However, judging by the way maternity leave has worked in small businesses, I believe that these can be overcome. Regulations made under the Social Security Contributions and Benefits Act mean that recovery of benefits is usually made by deducting the relevant amount from PAYE, national insurance and any student loan repayments that the employer is due to make to HMRC. There is, therefore, no immediate need for a cash-flow crisis to hit an employer. Further provision could be made in regulations without the need for any primary legislation.
I would like the Government to look closely at these proposals, of which I have given the Minister details, and seek to lay the necessary statutory instruments, so that in future no other terminally ill workers need have the additional stress or strain of worrying about their job and their family’s financial future.
On a purely personal note, I decided, on my own initiative, to consult my daughter and my daughter-in-law. One is a director of HR for a company in the City; the other is a deputy director of HR for a very large firm of solicitors. I asked them what they knew about how to deal with terminal illness. They basically said that they looked it up in the book. They both have an MSc in human relations. For neither of them was dealing with terminally ill workers part, for even half an hour, of their course. In other words, they qualified with an MSc in HR from different universities, at different times, in different cities and on different courses, without dealing with terminal illness even being referred to.
We need, therefore, to look beyond the terminal illness that we are dealing with here, and to ask the Government and the TUC to support the training of HR workers in how to deal with this problem, which affects a lot of workers. I thank the right reverend Prelate the Bishop of Chichester for being here, because this is a problem that is often dealt with by people of faith in many different religions. The right reverend Prelate will acknowledge that all faiths have to deal with this matter. It is a great strain, and many people in work faced with a terminal illness need a huge amount of support, love and effort. We owe it to them to train our workforce, and as a Government we owe it to the people of this country to do the best we can—without undue legislative weight—to make this a bearable problem for the many people affected. I thank noble Lords for listening to this opening speech.
The Lord Bishop of Chichester
My Lords, I greatly welcome this debate, and thank the noble Lord, Lord Balfe, for bringing this important matter to our attention. I also welcome the TUC’s support of the courageous work of Jacci Woodcock in highlighting the issue, on the basis of her own experience.
As a trustee of the diocese of Chichester, I share responsibility for employing nearly 100 staff but also for the care of some 400 clergy. These clergy are office-holders, not employees, and many live in accommodation they occupy by virtue of their office. A terminal illness for one of those clergy, as for anybody else, carries the prospect of multiple concerns, but especially for those dependent on them. The loss of income and a home are primary concerns, alongside the personal challenges of failing health and dependence on others—often difficult for those more familiar with caring for others. The potential loss of their home goes right to the heart of the fear of death and the implications for a family—particularly if there are issues such as schooling and the future of children—that a terminal illness brings. When a family is most challenged, networks of social relationships are immensely sensitive.
In the case of office-holders—our clergy—regulations attached to their appointment give a measure of protection, but the wider housing needs of a family are discretionary. Our policy in the diocese of Chichester is to treat each case individually, doing as much as we can to understand a family’s needs, such as schooling, and to support them in making their choices for the future.
In the one or two cases that have occurred while I have been Bishop of Chichester, we believe that the perception of a high level of care for the family, and for the person who has the terminal illness and is enabled to continue in ministry for as long as possible, has had a significant impact on trust and morale for other clergy in the diocese, who are living in a similar condition of dependency for their housing on their occupation of an office.
This is just one example of how the implications of terminal illness can relate to a person’s profession, work and beyond. The Dying to Work campaign invites us to consider another aspect of responding to terminal illness. It is increasingly the case that the death of someone close to us is not experienced until relatively late in our lives. We are not well prepared for the news of that death or how to respond to it emotionally. Our own mortality is given little attention in a culture that has benefited so much from medical science and unprecedented levels of healthcare. The noble Lord, Lord Balfe, gave the example of his daughter and daughter-in-law’s experience of being highly qualified HR consultants and practitioners and yet this taboo subject was not part of their training.
We find it easy to express our own grief in social ways—flowers, cards and candles at roadside shrines, for example—but, as clergy, we know from first-hand experience of being alongside the bereaved that grief will isolate you. It is so common to hear a bereaved person describe how many people came to a funeral but say that, a couple of days later, someone would cross the road to avoid a face-to-face encounter, because they did not know how to talk about death and grief.
Working alongside a person who is going to die is a privilege. It teaches us something about ourselves that our social processes today simply do not prepare us for. This is not a matter of Christian faith but simply a fact—the unflinching facing of our mortality. Working with somebody close to us who is going through that process can help break down the barrier of fear and embarrassment that prompts us to avoid not only the dying but, perhaps more significantly, the bereaved.
Finally, those who are handling a terminal illness are often capable of showing us the best of which a human being is able to demonstrate in challenging circumstances. Once again, this is enormously beneficial and inspirational for the atmosphere of a place of work.
Right now, in the diocese of Chichester we have a young priest who has a terminal illness. The institution in which he has been working has found accommodation that will meet his needs, while keeping him in touch with friends and colleagues. His mobility and energy levels had declined markedly when I saw him last, but his generosity of spirit and capacity to find the best in each day and each person he meets are remarkable, profoundly attractive and unforgettable. You cannot set a price on, or pay to, access this kind of inspirational example. It is a gift and a privilege, and it has rightly been drawn to our attention as something that we need to prize more greatly than we do.
Lord Horam (Con)
My Lords, I too am grateful for the opportunity to support my noble friend Lord Balfe in this important debate. I am also glad to hear the remarks of the right reverend Prelate the Bishop of Chichester, which went much wider and were very moving in the context of bereavement, terminal illness and degenerative disease.
I want to approach this from a slightly different angle, if the Committee will bear with me, because it may not be obvious to begin with. I have just finished reading a book by Professor Sir Paul Collier, The Future of Capitalism. He is the professor of economics and public policy at the Blavatnik School of Government in Oxford and makes an interesting point which is relevant to this debate, narrow though it may seem in that context. He says that the ethos of a typical company has been changing. I imagine that he is probably now in his 60s or possibly even his 70s, but as a young man he was brought up in Sheffield, where there were lots of steel companies. As he says, at that time everyone was proud of producing wonderful steel. Sheffield was the steel city of the world and, on the whole, workers were treated well, with strong trade unions and strong rights.
My first job was with Rowntree’s, which is well known as a part of the Quaker tradition. It has now been taken over by Nestlé while the other big Quaker confectionery company, Cadbury’s, has been taken over by an American company. Those companies built houses for their workers and had a proper approach to welfare. There was also the Rowntree Trust, which was involved in social policy.
Paul Collier’s book is very interesting, because he relates it to the nature of capitalism and how we deal with workers. His point is that since the 1970s, things have changed slowly. We have steadily introduced the idea of a company producing not the best product it can but shareholder value, which rules the roost. Companies are now expected to adhere to shareholder value in their basic philosophy. The professor has worse examples than that. For example, he mentions that at Goldman Sachs, people were sent out to find suckers to sell their products to. That is the level we have got to in some parts of our financial industries. As a consequence, this is in effect globalisation. Globalisation has been immensely good in many ways. It has lifted millions of people out of poverty in China and India, but it has had a downside. It has meant greater inequality, less care than there perhaps was previously for workers’ rights and, generally, poor- quality jobs.
This growing inequality is one of the things that I think led to Brexit, for example, to the rustbelt in America, the protests in France and the problems in the Mezzogiorno of Italy. With that downside there is less care for the workers, as opposed to the overall demand of a company to maximise profits and pursue consumer satisfaction, at the expense of workers’ rights and experience.
The obvious answer is more active government. I was glad that my noble friend made the point that there is a possibility of doing something through a statutory instrument to address this issue. I hope that the Minister has something positive to say about that. Today I understand that Greg Clark, the Business Secretary, is setting out some further examples of how the Government are tackling workplace problems and worker rights and I hope this can be included in that general agenda as well as in the specific question which my noble friend raised.
As Professor Collier states in his book, the truth is that government cannot do everything. I think the right reverend Prelate will agree with this point. We also have responsibilities. Companies have responsibilities and individuals have responsibilities as well as the state. The state simply cannot cover the waterfront and get all this done. It is simply too much to ask, especially when we have this wretched Brexit and the bandwidth of government is totally occupied with other matters. Companies have to reacquire—this is the point that Professor Collier makes in the book—the moral and ethical dimension which many of them once had but which is less prevalent today. My noble friend mentioned some companies which have already adopted this idea of help with degenerative or terminal illness, and I was glad to hear that, but he also mentioned that it was not mentioned in the advice given to his daughter and daughter-in-law who are in the HR field, so clearly there is a real problem about companies not recognising the issue.
My plea is not only for the Government to look at this issue and do something about it but that companies, perhaps through the TUC campaign, get on board. It is wonderful that Jacci Woodcock is here today. I am delighted to see her; we are full of admiration—I certainly am—for all that she has done. It is remarkable and it will be a great tribute to her if we could rack up examples of companies voluntarily doing something about it, not waiting for a statutory instrument to be passed by your Lordships’ House and the House of Commons. That would be a wonderful tribute to the work she has put in.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the noble Lord, Lord Balfe, for this debate and to the Committee for allowing me to speak in the gap. I should declare an interest because when I was chair of the National Council for Palliative Care, which has now merged with Hospice UK, it was an early signatory to the TUC voluntary code of practice and did not hesitate for one second over signing up to it.
It was at that time that I saw Jacci Woodcock. She has spoken very openly and with amazing courage about her situation and her emotional response to what has happened to her. Unfortunately, fewer than 1 million workers, I think, are now covered by the voluntary scheme, even though it is going well. I hoped that it would be something like three-quarters of the UK by now, and I think that reflects some of the problems that have been referred to in HR departments.
In the short time available, I shall look at the problem from the point of view of the person, their spouse and their children and then from that of the rest of the workforce, including HR departments. The person is devastated when they have a diagnosis of a life-limiting illness. They can feel as if they are now on the scrapheap, their life is drawing to a close and then they can find themselves rejected by a place they have worked in and in which they have invested their time and emotional energy. They almost always have distress in four main domains: the physical in relation to the illness; the emotional; the social and the all the problems and worries that come with it; and then the spiritual of why me? Whether you have a faith or not, if you are young and you are dying, you wonder why it is happening to you.
I welcome the suggestion made by the noble Lord, Lord Balfe, but I caution that there is always a problem with time limits. Different diseases take different courses, and some may go into remission and be in remission for a phase and then may suddenly accelerate. The principle of somebody faced with a life-threatening illness is one that we have to take on board as a whole and not pretend that if we put some framework round it, that would solve a problem. There are examples of good practice, and fortunately, I think the NHS has done well by its staff.
I have friends and colleagues who have died in service. Indeed, the boy I was brought up with died in service in International Harvesters, which kept him employed on its books for quite a long time because he outlived his prognosis.
What about the family? When someone becomes ill, they still have all their skills, which are often transferable. With a bit of imagination in the workforce, they can be built on to help workers to learn from that person and hand on their skills. The spouse will of course be devastated, but there is also psychological damage for the children of seeing their parents rejected. That is the parent who stayed at work rather than fetch them from school, who was not always there to do things because they were worrying about work, but work has thrown them out. That will destroy their whole concept of society and the value structure.
We must not forget that 90% of children know what is going on when their parent is ill or dying. What kind of a society are we if we give these children the message that their parent is now on the scrapheap and being rejected? That will destroy their work ethic for life.
Lastly, I hope that HR departments will recognise that the evidence is that productivity goes up if you have someone who the rest of the workforce is looking after. Productivity rises because everyone can focus on what is a really big problem, and all those little moans and undermining comments vanish. Those things that demoralise the workforce tend to disappear, so it is also a good financial investment.
Lord Razzall (LD)
My Lords, I share the general commendation for the noble Lord, Lord Balfe, for bringing forward this very important issue. When I put my name down to speak in this debate, I asked several business colleagues what they thought: what steps should be taken to prevent workers being dismissed from their jobs following diagnosis of a terminal illness. To a man and woman, they said, “That would not happen”. They could not envisage circumstances in which it would happen.
Clearly, there is a mismatch between where we are in the law and what people think ought to be the case. Obviously, nobody in their right mind would think that anybody should be dismissed, even if they have a terminal illness, if they are capable of carrying on doing their job. Nobody in their right mind would think that anyone should be dismissed because they have been injured or hurt in the course of performing their employment duties.
As always in these cases, the devil is in the detail. The example of Jacci Woodcock exemplifies why. The noble Lord, Lord Balfe, described very well his relatives’ position, not that I have ever met them. I come from a corporate law background, and, in that world, there were standard service provisions in employment contracts under which, if anyone was incapable of doing their job through ill health, for a period, they had full pay, then for another period they had half pay. After that period was at an end, they had no pay. I suspect that the reason that his relatives had not dealt with this issue was because they came from a world of service contracts that made all those provisions.
Again, the devil is in the detail. The noble Lord, Lord Balfe, has been very creative in suggesting how the situation can be made certain through the use of statutory instruments rather than primary legislation because, as we all know, with the Government’s obsession with Brexit, the chance of getting any primary legislation on the statute book this side of 2080 is pretty remote.
I urge that the noble Lord’s suggestion be adopted. As the noble Lord, Lord Horam, said, the remarks of Mr Clark today are very opportune: the Government are looking at what to do to improve and tidy up the whole area of employment. This is a very worthwhile commitment to what he is trying to do.
Lord McNicol of West Kilbride (Lab)
My Lords, I thank the noble Lord, Lord Balfe, for his opening remarks and declare an interest as a member and former member of staff of the GMB trade union. I echo the noble Lord’s call for action from the Government. My colleagues and I on the Opposition Benches support the proposals outlined and agree that the protections afforded to terminally ill workers need to be strengthened. I take this opportunity to praise the work of Jacci Woodcock—it is lovely to see her here today—the TUC and my union, the GMB, which launched the Dying to Work campaign and have raised significant awareness of this important issue.
However, this is not just a trade union issue. As was touched on earlier, this campaign has considerable support from employers across both the public and private sectors. In addition to the support from the business community, the campaign has been endorsed by third-sector organisations that work to support people with terminal illnesses—as we heard earlier from the noble Baroness, Lady Finlay—such as Breast Cancer Care, Second Hope, Marie Curie, the National Council for Palliative Care and Hospice UK.
Businesses, trade unions and wider civic society are united in a desire to see the loopholes closed so that vulnerable workers are not living under the constant threat of dismissal during their end-of-life period. This could be done quickly and effectively using secondary legislation. Providing more security to terminally ill workers and their families should not divide us; instead, I am certain this can bring together Members from across the House. This is not an issue of left or right but of right and wrong.
From a new apprentice all the way through to a CEO, a terminal diagnosis can strike anyone at any time. No one trying to cope with a terminal illness should find themselves forced out of work and losing the death-in-service payments that can provide financial security for the family they leave behind.
My fellow Peers will be all too aware of the difficulties surrounding a terminal diagnosis following the powerful and moving speech earlier this year by my friend and colleague the late Baroness Jowell, which received universal acclaim and support from across the House. Tessa commented in her speech that terminally ill people,
“need to know that they have a community around them, supporting and caring, being practical and kind”.
Our society’s values, which demand such care and kindness, do not stop at the door of our workplace, and we should expect and demand the same practical and kind support from every employer of a terminally ill worker. Tessa concluded her speech by saying:
“In the end, what gives a life meaning is not only how it is lived, but how it draws to a close”.—[Official Report, 25/1/18; col. 1170.]
For some people, that will mean maintaining the positive stimulation, normality and dignity of being in work and not being forced out of work by an unscrupulous employer. I believe the proposals made by the noble Lord, Lord Balfe, will give people the choice about how they spend the final few weeks or months of their lives. Some will decide to leave work, take ill health retirement, bring forward their pension or take any other action that may be in their interest. This proposal does not force people to stay in work but instead gives working people the ability to select the right option for themselves and their families based on their own personal and financial circumstances.
In the Prime Minister’s first speech outside Downing Street, she made a number of pledges to provide support for working people. Sadly, however, we have seen precious few examples of this rhetoric in action. One such pledge made by the Prime Minister to working people was to,
“do everything we can to give you more control over your lives”.
Here is a cost-free opportunity, with support from across this House and the other place, to provide a very vulnerable group of people with control over the last chapter of their lives. This proposal also has overwhelming public support; a recent Survation poll showed that over 79% of people supported these changes.
Clearly, this is not only the right thing to do but it makes good practical sense, and I challenge the Government to grasp this golden opportunity and demonstrate that the Prime Minister meant what she said when she took office. However, this is not just about politics but about people, so I will share a story which appeared in the Nottingham Post on this very day last year, to demonstrate why we must act on this issue:
“Karen Land, 39, had just finished training for her dream job of becoming a firefighter when she was told she had three months to live”.
Karen, who had previously been a stay-at-home mum, a parent of five, had just finished firefighter training when she was diagnosed. She said:
“‘It’s all happened so quickly. Nine weeks ago I was fit and healthy and training for my dream job and now I have three months left. It is almost surreal, I think I am still in shock … This job meant everything to me. It was so hard to get on the training course, and I put so much work into it.… Tracy Crump, the service’s head of people and organisational development, said: ‘Our people are our Service, and their health and wellbeing is massively important to us, so I’m really pleased that we have been able to sign this charter to set in stone our commitment to ensuring that any employee with a terminal illness has much needed security, stability and peace of mind’”.
I commend Nottinghamshire Fire and Rescue for signing the TUC Dying to Work voluntary charter and making this important commitment to Ms Land and their other employees.
Work was clearly important to Karen, and it is great that her employer has supported her and her family in this way. I hope that many other employers go on to do the same. However, we know that too often, people in Karen’s position can find that they are suddenly forced through stressful HR procedures with the constant threat of losing their job, putting their family’s future financial security at risk. Living with a terminal diagnosis is challenging enough without this additional stress and strain.
Before I conclude, I thank my union, the GMB, for its support, and in particular Richard Oliver.
For all these reasons, I support the proposals as set out and hope that my fellow Peers from across the House can continue to work together on this issue. The Government must act to ensure that every terminally ill worker has the protection and support they need during the final few weeks and months of their lives.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)
My Lords, I echo the noble Lord, Lord McNicol, and other speakers, in offering my congratulations to Jacci Woodcock on all that she has done in this area, because so much of what we are talking about is part of that educative process. I also praise the TUC for its campaign and the work it does in this field. I thank my noble friend Lord Balfe for tabling this Question and for securing such speakers as the right reverend Prelate, with his expertise from the Church, the noble Baroness, Lady Finlay, whose expertise in this field needs no repeating, and my noble friend Lord Horam, with his experience of Rowntree’s and other employers of that sort.
My noble friend Lord Horam mentioned that my right honourable friend the Secretary of State for Business, Energy and Industrial Strategy had made a Statement setting out his plans. I can assure my noble friend that the Minister will make a Statement later today but other things will have got in the way, so I am not sure when. I was hoping to repeat that Statement today but it is likely to be tomorrow. In it, we will set out a work plan as a carefully considered and ambitious approach to the Taylor review. I hope that the noble Lord will be there tomorrow, along with others, when that Statement is repeated. I see the noble Lord, Lord Stevenson, nodding, so I am sure he will be there.
The period following a diagnosis of terminal illness is an incredibly difficult time. Noble Lords will agree, I am sure, that employees who suffer from a terminal illness should not have any additional burdens placed on them, particularly any worry that they may be unfairly dismissed from their employment due to illness. For that reason, the Government strongly encourage all employers to treat employees with disabilities and related conditions with sensitivity and compassion. My noble friend raised a number of points during the debate, and I will set out just some of the current protections available to employees suffering from disabilities. We have some of the strongest equalities legislation in the world, and we will continue to make sure that these rights are protected. I think we can say in all honesty that we are recognised as a world leader in this field.
The 2010 Act, which has been referred to, provides protections such that disabled workers with chronic diseases or conditions, whether terminal or not, or debilitating illnesses are fully protected from any discriminatory conduct by their employers. Provided that a person meets the definition for having a disability, they will be protected under the legislation and it will be unlawful for an employer to discriminate against them because of their disability. Under employment law, an employee who is unlawfully dismissed or forced to resign from a job because of a terminal illness may bring a claim of unfair dismissal against their employer, and/or a claim of disability discrimination under the 2010 Act.
More generally, it is the Government’s view that, where an employee is unable to attend work due to an illness, dismissal should be a last resort and an employer should consider as many ways as possible to support the employee back to work. This should be informed, where appropriate, by a medical report from the employee’s GP—with permission—or by arranging an occupational health assessment.
Employees who consider that their dismissal was unfair can complain to an employment tribunal, generally subject to a qualifying period of two years’ continuous service. A tribunal will usually expect the employer to have sought advice on how long the employee was likely to remain absent, or whether he or she was likely to be persistently absent in future. Should the tribunal deem the dismissal unfair, the employee would be entitled to a basic award—set at the same level as statutory redundancy pay—and a compensatory award. The latter would be based on the tribunal’s assessment of the employee’s loss of earnings, pension rights and so on.
My noble friend, and other noble Lords, spoke of the TUC’s Dying to Work campaign. That aims to ensure that terminal illness is recognised as a protected characteristic under the Equality Act so that an employee with a terminal illness would enjoy a protected period against dismissal by an employer as a result of illness. We fully support the objective of enabling employees with life-threatening conditions to continue working for as long as possible. We believe that the workplace rights of people with terminal illnesses are already protected by the Act, and I am not convinced that additional protection is required.
If my noble friend were to look at Schedule 1(8) to the Equality Act, it makes it clear that those with progressive conditions are likely to meet the definition of disability and so be protected. Further, under that Act protection from discrimination is already available to those diagnosed as having a chronic, progressive or life-limiting disease. Terminal illnesses fall within this bracket, and the Act and associated guidance make it clear that those with progressive conditions whose effects increase in severity over time should be regarded as meeting the criteria for having a disability before the condition actually has that effect.
My noble friend also made the point that despite the provisions of the Equality Act, it is still possible for an employer to dismiss a worker on grounds of capability. That is true only to the extent that the dismissal does not breach the protections in that Act. For example, a dismissal will be unlawful if it is based on something which arises from the worker’s disability and is not justified as a proportionate way to achieve a legitimate aim. So, the Government are not persuaded of the need to legislate, whether that be by primary legislation, which the noble Lord, Lord Razzall, thought would take some time, or secondary legislation. Furthermore, the Government’s view is that a new characteristic will not stop bad employers flouting the law, while those merely behaving in ignorance of the law are best addressed through education and guidance.
I note also my noble friend’s point regarding reforms to statutory sick pay. We want to see a reformed statutory sick pay system which supports more flexible working, for example, to help support phased returns to work, including spacing out working days during a return to work, while managing a long-term health condition or when recovering from illness. Offering periods of flexible working may help people to manage or recover from a health condition. However, SSP is currently inflexible and creates a financial disincentive for employees to consider some forms of phased return to work. We are taking forward further policy development and will bring forward a consultation on these changes, as well as any other SSP changes that we identify in our wider work, before introducing this reform. The Government will consult on measures to encourage and support all employers to play their part in this vital agenda and improve access to occupational health.
My noble friend also mentioned the duty on employers to provide reasonable adjustments for those with disabilities. This duty is not a once-only action or consideration. It requires review, adaptation and ongoing support as people’s needs change and develop. An employer will need to anticipate their employee’s evolving needs and adapt the adjustments to the reality of their time in the workplace. However, the duty to provide reasonable adjustments is not limitless; the Equality Act contains qualifications to the protections it provides across the protected characteristics. It makes it clear that the adjustments that should be made and the protections provided have to be reasonable in all the circumstances, taking into account a variety of factors, including the resources and circumstances of the business in question. This concept is well understood in law and generally thought to be working well. Disabled people have brought successful claims under these provisions where employers have got the balance wrong on what is reasonable. We believe that to define in legislation what constitutes “reasonable” in a particular circumstance would begin to undermine the nature of the Act and its ability to apply to the circumstances of individual cases, which has been the backbone of disability legislation since it was introduced in 1995.
Although I am naturally concerned by and sympathetic to the plight of anyone who receives such a diagnosis, I do not believe it would be reasonable to expect an employer to retain people on their books indefinitely if they are no longer able to carry out work once all reasonable adjustments have been made. I fear that the unintended consequences of such a change in the law could be significant.
My noble friend Lord Balfe also talked about the need for better training in HR. He cited the experience of his two daughters. I assure him that guidance and practical workshops are available on the ACAS website. ACAS also published specific guidance on potentially life-threatening conditions in September 2016.
I emphasise that the Government are committed to improving the lives of all people with disabilities, terminal illnesses and related conditions, and to making the UK a country where everyone can achieve their full potential. To achieve this, we believe that it is imperative for all employers to be aware of and fulfil their legal obligations towards their employees, including disabled and terminally ill employees. For this reason, we believe that the guidance and practical training available from ACAS and its website should encourage and assist all employees. I end by recommending that all employers make use of those resources.