To avoid discrimination claims, employees should be allowed to work in their original role or an adjusted one for as long as they wish, subject to capability, medical advice, and health and safety considerations.
If the employee needs time off, four main types of leave may be available.
Sick leave
Usual sick leave agreements and policies apply to employees with a terminal illness, unless further special arrangements are agreed in a contractual variation.
Extended, special or compassionate leave
Employers and terminally ill employees can agree for extended time off to be taken as sick leave, extra paid or unpaid leave. Although there is much room for agreement, if the leave agreed is unpaid time off as opposed to paid sick pay, potential disability discrimination claims may ensue.
Please note, the expression ‘compassionate’ leave has no strict meaning under UK law, but employers may offer compassionate leave to provide time off.
Annual leave
Part of any sick or special leave during the period of illness can be taken as holiday. If an employee does not request this, any accrued holiday at the date of death should be paid to the employee’s beneficiaries as payment for the holiday untaken, together with any outstanding salary.
Flexible working
Someone facing a terminal illness may initially request changes to working hours or location of work. Requests can be made informally to employers, or the flexible working regime can be used.
Employers are not obliged to accommodate every flexible working request, but requested arrangements from the terminally ill are likely to be short term and employers are more likely to be able to accommodate them. The response time for requests is within three months (reducing to two in 2024), but in cases of terminal illness employers should consider responding more promptly. If requests are refused, this should be for only one or more of eight statutory grounds, including the detrimental effect on the ability to meet customer demand or inability to reorganise work among existing staff.
Refusal of requests for flexible working may trigger disability discrimination or reasonable adjustments claims.