Employment: Terminal Illness

Lord Henley Excerpts

Monday 17th December 2018 Grand Committee

[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.