Dismissal Due to Depression

Employers in the UK can dismiss an employee for depression-related incapability, but only as a last resort after providing substantial support, making reasonable adjustments, and allowing a recovery period, as you would do with a serious physical illness. Depression may qualify as a disability under the Equality Act if it has a long-term (typically 12+ months) and substantial impact on daily activities, making any dismissal high-risk for discrimination claims, which are allocated uncapped compensation amounts.

Mental health can have a tremendous impact on work performance. You should always do whatever you can to support employees through this. However, at a certain point, you may need to consider dismissal.

There is no legal definition of mental health, but it is generally understood to be the emotional state in which an individual can't cope with the normal pressures of everyday life. This can be caused by a mental health condition and/or mental illness.

Mental health can fluctuate, either because of personal circumstances like an illness or family bereavement or because of work issues.

Often, a mental health condition can cause stress, anxiety, and depression. Employees suffering from these conditions often need support and, if left unattended, they can have negative effects on their coworkers.

In this article, we’ll look at how to manage an employee suffering from depression, and how to approach dismissal if capability becomes an issue as a result.

• When does depression become a disability?
• Depression and poor work performance
• Dismissing someone with depression
• Unfair dismissal due to depression
• Dismissed for other mental health reasons
• Get expert support on dismissals

Depression and employment law

As an employer, you have a duty of care towards your employees. Furthermore, employees with disabilities are protected by UK employment law. For these reasons, dismissal from work due to depression poses risks.

The law can treat depression as a disability, which would leave you liable for discrimination claims. These come with unlimited compensation. Compensation is uncapped for discrimination claims although there are guidelines the tribunal will take into account.

So, the key question you need to ask is: “Does my employee’s depression constitute a disability?”.

When does depression become a disability?

A mental health condition is considered a disability if it has a long-term, substantial negative effect on the person’s ability to carry out normal day-to-day activity. In specific, the law state that someone is disabled if both of the following apply:

• They have a 'physical or mental impairment'.
• The impairment 'has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities'.

This shows there are two factors you need to consider—What is the extent of the impairment and what is the effect on the employee?

‘Normal day-to-day activity’ is defined as something one would do regularly on a normal day. This includes things like using a computer, working at set times or interacting with people. This is fairly easy to classify.

However, it’s the second qualifier that you may struggle with. The law defines it as lasting, or likely to last for around 12 months or more, which is defined as ‘long-term’. But the nature of depression means it can occur, improve, and then recur.

For this reason, it's tricky to determine the time the condition may last. 

Make sure you take both factors into consideration before considering dismissing an employee with depression. Remember, if an unfair or discrimination claim is made against you, it will be for the tribunal to decide if the employee is disabled under the Equality Act 2010.

Depression and poor work performance

One way you can support your employees with their mental health and wellbeing is to create an environment where staff can talk openly about any issues they’re having.

You can create this kind of culture in several ways:

• Make sure regular meetings are occurring between employees and managers.
• Encourage mental health awareness training or workshops.
• Appoint mental health ‘champions’ employees can speak to.
• Adopt a mental health strategy and implement a mental health policy.
• Train managers on how to approach someone who is experiencing mental health problems.

Of course, if you’re already managing an employee who is too depressed to work, the above might not be helpful. Instead, make sure they’re aware of the person they need to speak to within the business to arrange time off.

Don’t downplay their condition just because it is mental health and not physical health.

Remember, if an employee cannot work due to depression in the UK, employment law will protect them. 

Once they are off work, be sure to check in at regular intervals. Don’t pressure the employee to come back to work when they are not ready to. If they are off work for a substantial amount of time, it’s up to you to decide what constitutes a substantial period of sickness absence. You may arrange a meeting with them to discuss getting them back into work, as this is good practice.

In this meeting, you should consider any reasonable adjustments you can make to support their return.

If needs be, you can refer the employee to occupational health to assess their current capability, given that you’ve received the employee’s consent. 

If you’ve given sufficient time, considered reasonable adjustments, and utilised occupational health services and the employee still shows no sign of returning to work, you may begin to consider dismissal.

Dismissing someone with depression

Medical capability dismissal for an employee who has depression is possible but can result in a discrimination and/or unfair dismissal claims, accompanied by large pay outs if you handle it incorrectly. To ensure it isn’t unfair, you should take all the steps above.

You may also need to wait a substantial amount of time.

How long do you need to wait?

There is no legal definition for the time you need to provide. Consider how long you would give an employee to recover from a serious illness or accident. This is a good basis for the period you should allow; however, each case is different, and you should be willing to be flexible if needed.

The other period of time to consider is the period the depression lasts. If a condition lasts or is likely to last, 12 months or more, then it may be considered a disability. If it is, you are at greater risk of a claim of disability-based discrimination if the employee is dismissed during this time.

However, employers are allowed to use medical capability dismissal, which would usually be due to the employee’s absence levels because of the depression, not because of depression itself.

Unfair dismissal due to depression

The key to keeping the process fair when managing a depressed office worker is communication. You can request ‘fit notes’ after the 8^th day of sickness absence onwards. They can self-certify for the first 7 days.

It is advisable that you hold meetings – face-to-face, via video call, or on the phone –, to discuss the individual’s condition and adjustments to get them back into the workplace. However, the level of contact will depend on the employee and whether they feel well enough to engage with you. As an employer, you should avoid making the employee does not feel harassed in any way.

Remember, a phased return to work, flexible working hours, and homeworking are all considerations you should make.

If you fire an employee for depression, this will constitute direct discrimination if the employee meets the definition of disability in the Equality Act 2010. Dismissal needs to be fair, i.e. a fair procedure needs to be followed o reduce the risk of a claim.

Dismissed for other mental health reasons

Hopefully, by now, you’ll know what to look out for when considering dismissal for depression. But depression is only one condition, which may lead to the question: “Can you dismiss someone for other mental health issues?”

The simple answer is yes, so long as you follow a fair process. If the employee is suffering from severe anxiety or stress, the same rules apply.

If the individual is suffering from a mental illness, such as schizophrenia or bipolar disorder, contact their GP for recommendations as soon as possible, but only if you have obtained the employee’s consent. This same rule for obtaining consent applied to all other mental health conditions.

Unlike depression or stress, some mental health conditions will be classed as a disability, but only if they cause a long-term effect on your normal day-today activity, as per the Equality Act 2010.

Get expert support on dismissals

Mental health and well-being will be a big part of all your employees’ working lives. It is important to recognise and account for this. But sometimes, a dismissal is the only option.

Our experienced employment law and HR advisors can help you navigate this difficult subject. With expert advice, you can be sure you are making the right decision.

Our experts provide free help, support, and advice tailored to your requirements. Call us for free today on 01455 858 132.