The latest Employment nightmare doing the rounds on Twitter courtesy of the Huffington Post is what can only be described as a gob-smackingly insensitive letter from one Dr V., an “oral surgeon” from Pennsylvania.
On being informed by one of his employees of 12 years’ loyal service that she had been diagnosed with cancer of the pancreas, liver and ovaries, he did what any self-respecting medical professional would do, i.e. assessed the impact of this news on himself and fired her.
Then to add insult to injury, he set out his reasoning in a letter which was duly photographed and is now forever enshrined on the internet. The letter starts promisingly: “You are currently engaged in a battle against cancer that will be demanding physically, mentally and emotionally” – so far so sympathetic. “The symptoms of the disease, the pain medications you will need and the side effects of the chemotherapy will be significant and distracting…. You will not be able to function in my office at the level required because you will be battling for your life” it continues reassuringly, ending the paragraph with “Because of this, I am laying you off without pay as of August 11, 2014.“
In a clearly doomed attempt to lighten the mood, Dr V. then concludes the letter by informing the no doubt now distraught employee that “Our thoughts and prayers are with you as you fight this horrible disease. Thanks for your time at V. Oral Surgery. I hope your battle is swift, smooth and successful.“ Nice. You wonder faintly if he went for flowers or just a leaving card.
Laying aside the sheer clunkiness of the letter, I certainly won’t be advising my clients to take a leaf from the Dr V. Big Book of Employment Relations. Under the UK Equality Act 2010, employees with cancer are automatically classed as disabled and therefore have a full range of protections including the right not to be subjected to direct or indirect discrimination, the right to have reasonable adjustments made to accommodate their disability, and also the ability to bring a claim that they have been subjected to a discriminatory dismissal. It is hard to see a basis upon which a UK Employment Tribunal would ever find such a knee-jerk dismissal to be fair or non-discriminatory, or that the Dr V. had complied with his duty to consider or make reasonable adjustments. I certainly would not want to be defending Dr V., given the roasting that both client and advocate would likely get from a no-doubt highly unimpressed Employment Judge.
That’s not to say that an employer of an employee suffering from cancer could never get to the point of fairly dismissing him. In fairness to Dr V., it is certainly possible that his employee’s illness and/or the side-effects of her treatment could in time make it harder or impossible for her to do her job effectively. That could, also in time, make a dismissal legally (morally is a tougher question) justifiable. However, before any such decision was taken, the employer would be expected to have obtained an up- to-date medical opinion as to the employee’s prognosis, and have consulted with him about the situation, the stage of the disease, intended treatment and timescales, prognosis, likely limitations on working hours and capabilities, etc. It is evidence of that consultation which we would hope to see in writing, not a glaring example of dentopedology, that little-known branch of dentistry defined by HRH Prince Philip as “the science of opening your mouth and then putting your foot in it”. The employer would also need to make sure that dismissing the employee would not deprive him of the ability to apply for benefits under any permanent health insurance scheme, as to do so could lead to a very costly breach of contract claim.
Even if all of those boxes were ticked, however, it doesn’t take an experienced Employment lawyer to realise that at no point will it ever (I repeat, ever) be sensible (or indeed decent) to write this kind of letter.