19 Feb 2021
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 is generally understood to be the emotional state in which you can cope with the normal pressures of everyday life. This will include your mental health condition and mental illness.
Mental health can fluctuate, either because of personal circumstances like an illness or family bereavement or because of work issues such as being bullied at work.
Often, a mental health condition can cause stress, anxiety, and depression. Employees suffering from these conditions often need support and, if left unattended, can have 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.
Depression and employment law
As an employer, you have a duty of care towards your employees. Not only this, employees with disabilities are protected by UK employment law. For these reasons, dismissal from work due to depression poses risks.
Law can see depression as a disability, which would leave you liable for discrimination claims. These come with unlimited fines and have no minimum service period, so you want to avoid this at all costs.
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 effect on normal day-to-day activity.
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 in a normal day. This includes things like using a computer, working set times or interacting with people. This is fairly easy to classify.
However, it’s the second qualifier that you may struggle with. Law defines it as around lasting, or likely to last, around 12 months. But the nature of depression means it can occur, improve, and then recur again.
For this reason, it's tricky to determine the time the condition lasts.
Make sure you take both factors into consideration before considering dismissing an employee with depression.
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 is not able to work due to depression in the UK, employment law may 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. If they are off work for a substantial amount of time (it’s up to you to decide what period this is) you may arrange a meeting with them to discuss getting them back into work.
In this meeting, you need to consider any reasonable adjustments you can make to support their return.
You can refer the employee to occupational health to assess their current capability.
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 a dismissal.
Dismissing someone with depression
Medical capability dismissal for an employee who has depression is possible but can result in an unfair dismissal claim and large pay-outs if you handle it incorrectly. To ensure it isn’t unfair, you must take all the steps above.
You must also wait a substantial amount of time. But 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, then it may be considered a disability. If it is, you are at greater risk of a claim of unfair dismissal when the employee is fired for depression by UK employment law.
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 prolonged absences. You can 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.
Remember, a phased return to work, flexible working hours, and homeworking are all considerations you should make.
If you fire an employee for depression, you may need to show why these alternatives weren’t viable.
Keeping meeting notes will help if the case goes to tribunal, as you demonstrate that you followed a fair process and considered all alternatives.
Fired for other mental health reasons
Hopefully, by now, you’ll know what to look out for when considering a dismissal for depression. But depression is only one condition, which may lead to the question:
“Can you fire 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.
Unlike depression or stress, some conditions (such as bipolar disorder) are automatically classed as a disability.
Expert support on dismissals from Croner
Mental health and wellbeing will be a big part of all your employee’s 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
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