Terminally ill and fired what to do?

#AnaBanana

Dear AnaBanana

Thank you for your query. My name is Stacey, and I am an adviser from the Work Support team here at Macmillan. I’m sorry the news about your job. It must have come as a shock if you were not expecting it. There are few situations to consider around this outcome.

Firstly, it may be an error and payroll had assumed that from your absence (if it has been long term without any contact) had assumed wrongly that you have stopped working for them. Is it the company sick pay that has stopped?  Or if you had been working through your treatment (perhaps with reasonable adjustments) that your salary has stopped? It can happen to employees who are off long-term sick with little contact from the employer that payroll can assume you have ceased to be an employee. Also, the fact that you have not heard from the headteacher or the school (or perhaps the local authority if it is an LA school) would support the fact that payroll have reached the wrong conclusion. This needs to be addressed as soon as possible as you need to clarify why payroll have assumed this. Hopefully, if it is an error the fault would be rectified and either your sick pay or salary would resume with some back pay.

Secondly, if you have been off long term sick and the employer had decided to dismiss you then your contract would end. It is possible to dismiss someone for reasons of capability. This means that the employee is unable to perform their job role – either through inability to carry out the post or that there is little chance of the employee returning to their post from long term sick leave (no foreseeable return date) or that perhaps due to their illness the employer has established that they are unable to carry the key job duties in the post.  If this is the case, you might have expected your employer to have followed their own sickness absence monitoring procedures and that after wellbeing meetings and disciplinary meetings and a possible referral to Occupational Health to establish your capability to work they had given you warning of possible dismissal.  If you were to be dismissed you would receive a letter with your last day of working, notice given, and any accrued leave offered. If an employee takes a case further to an Employment Tribunal for the reason of unfair dismissal (currently if you have been employed there for more than 2 years) or discrimination , it’s likely that they would check to see if the dismissal was fair by checking that the employer had followed their own procedures or ACAS (Arbitration, Conciliation and Advice Service) disciplinary and grievance procedures:

 https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures

If you have a reply from the school to say you have been dismissed, you could appeal against the decision saying that you are intending to return or wish to continue working there.  It is an employer’s duty to provide reasonable adjustments to an employee who has a cancer diagnosis as they are classed as having a disability under the Equality Act 2010 (DDA act 1995 in Northern Ireland).  Here is a link to our booklet that explains more about this:

Your Rights at Work

An employer should, for example, look more favourably on any sickness absence or look at any adjustments that might be put in place (such as a change in duties, dropped hours) to encourage that person to return. An employer should not conclude that the dismissal is inevitable without looking at any support they can offer. If an employee has a terminal prognosis an employer should not make the assumption that an employee is not able to do their job. Even if someone is not able to do their job, the employer should make efforts to look at other job duties or roles that the person may be able to carry out.  If you find that that the employer has dismissed you unfairly and/or discriminated against you, then you might wish to consider approaching ACAS for the reasons given above. *It is important to be aware of the timeframe for making a claim to an Employment Tribunal especially if the time starts in May – which is 3 months minus 1 day.*  Here is another link to contact ACAS:

 https://www.acas.org.uk/early-conciliation

I hope that you will find the above information useful. It is important that you take action to establish what has happened. If you need any further help and advice, please contact us again by return of email or you can also ring us on the number below. Also, if you are in a trade union at work they should also be approached for support.

Stacey