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. In some cases, adjustments to sick pay policies may amount to 'reasonable adjustments' under the Act, but recent case law has confirmed that it is unlikely to be reasonable for an employer to extend paid sick leave significantly unless it is the employer's action which is preventing the employee from returning to work.
Extended, special or compassionate leave
If the employee has exhausted all sick leave that is available through statutory and contractual schemes, it is open to employers and terminally ill employees to agree for extended time off to be taken as extra paid or unpaid leave.
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
An employee can request holiday/annual leave to cover sickness absence if this is helpful for them. 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 two months, but in cases of terminal illness employers should consider responding more promptly. A request for flexible working can only be refused by an employer for 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. The guide on planning and managing flexible working requests can support people professionals in these decisions.
Refusal of requests for flexible working may trigger disability discrimination or reasonable adjustments claims (see above).