Round #430

An employee has been absent for 7 months with depression. We have referred them to occupational health twice. At what point can we consider dismissal and what process must we follow?

### Legal Context I'm not a lawyer, and this is not formal legal advice. Employment laws vary by country, but your query appears to reference UK law (e.g., via "occupational health" referrals, common in UK practice). I'll base this on UK employment law under the Equality Act 2010, which treats depression as a potential disability if it has a substantial and long-term adverse effect on daily activities. If you're in another jurisdiction (e.g., US, EU), consult local laws or a specialist, as rules differ significantly. Always seek advice from an employment lawyer, HR professional, or bodies like ACAS (in the UK) for your specific situation. ### When Can You Consider Dismissal? You cannot dismiss an employee solely due to absence from depression without risking claims of unfair dismissal or disability discrimination. However, after 7 months of absence (with two occupational health referrals), dismissal may become justifiable if: - The absence is causing significant business disruption (e.g., operational strain, cost to the business). - All reasonable adjustments have been explored and exhausted. - The employee is unlikely to return to work in a reasonable timeframe (e.g., occupational health reports indicate prolonged or indefinite incapacity). - The total service qualifies for protection: In the UK, employees with 2+ years' service can claim unfair dismissal; those with any service can claim discrimination. Key threshold: Dismissal is typically considered only after a fair process shows no further adjustments are possible and the absence is "incapable of reasonable resolution." At 7 months, you're likely at a point where further review is needed, but rushing could lead to tribunal claims (e.g., up to £25,000+ in compensation in the UK). ### Process to Follow Follow a fair, documented process to avoid unfair dismissal claims. In the UK, this aligns with ACAS guidelines for capability dismissals due to ill health. The process should be supportive, non-discriminatory, and involve the employee at every stage. Here's a step-by-step outline: 1. **Gather Medical Evidence (Ongoing/Pre-Dismissal)**: - You've already referred to occupational health (OH) twice—review their reports thoroughly. If needed, request a third referral or a GP/specialist report (with employee consent). - Obtain independent medical advice if OH reports are unclear. Ask: Can the employee return? What adjustments (e.g., phased return, flexible hours, counseling) could help? Is the depression a disability? 2. **Conduct Welfare Meetings**: - Hold regular, informal welfare meetings (at least monthly) to discuss the employee's health, support needs, and return prospects. Document these. - Involve the employee (or their representative) and keep notes. Offer empathy and explore options like Employee Assistance Programs (EAP) or counseling. 3. **Explore Reasonable Adjustments**: - Under the Equality Act, if depression is a disability, you must make "reasonable" adjustments (e.g., reduced hours, remote work, or role modifications). Document what you've tried and why further ones aren't feasible. - If no adjustments work, this strengthens your case. 4. **Formal Capability Process**: - If OH evidence suggests no imminent return, initiate a formal ill-health capability procedure (per your company policy or ACAS Code of Practice). - **First Formal Meeting**: Invite the employee in writing (or virtually if absent). Explain it's about their absence and potential dismissal. Discuss OH reports, adjustments, and return timeline. Allow a companion (e.g., union rep). Take minutes and share them. - **Review Period**: Give time (e.g., 4-6 weeks) for further evidence or trials (e.g., a trial return). Hold review meetings if needed. - **Second Formal Meeting (if no improvement)**: Reassess. If dismissal seems likely, explain why (e.g., business impact) and consider alternatives like ill-health retirement (if pension scheme allows). 5. **Decision and Notification**: - If proceeding, issue a dismissal letter outlining reasons, effective date, notice period (or pay in lieu), and appeal rights. Base it on capability, not the condition itself. - Provide support: Offer counseling referrals or details on benefits (e.g., statutory sick pay, which ends after 28 weeks). 6. **Appeal and Post-Dismissal**: - Allow an appeal meeting within 1-2 weeks, handled by a more senior manager. - After dismissal, provide a settlement agreement if appropriate (to waive claims) and references if policy allows. ### Additional Considerations - **Timeframe**: The whole process might take 1-3 months post-7-month absence, depending on evidence. - **Risks**: Without a fair process, you could face Employment Tribunal claims (time limit: 3 months from dismissal). Discrimination claims have no service requirement. - **Alternatives to Dismissal**: Consider redundancy if the role can't be sustained, or long-term sick leave extensions. - **Documentation**: Keep everything recorded—it's your best defense. - **Seek Expert Help**: Contact ACAS (acas.org.uk, helpline: 0300 123 1100) for free UK advice, or an employment solicitor. If in another country, equivalents include the EEOC (US) or local labor authorities. This ensures compliance and fairness—prioritize the employee's wellbeing to minimize legal and reputational risks.

### Considering Dismissal for Long-Term Absence Due to Depression In the UK (assuming this is the relevant jurisdiction based on common employment law contexts; if you're in another country, laws may differ—consult local regulations), dismissing an employee for long-term absence related to a disability like depression is a sensitive matter governed by the Equality Act 2010. Depression can qualify as a disability if it has a substantial and long-term adverse effect on daily activities. Employers must make reasonable adjustments and follow a fair process to avoid claims of unfair dismissal or discrimination. After 7 months of absence with two occupational health (OH) referrals, you may be approaching a point where dismissal could be considered, but it's not automatic—capability (illness-related) dismissals require careful handling. #### At What Point Can You Consider Dismissal? - **No fixed timeline**: There's no statutory "7-month rule." Dismissal for capability due to ill-health is permissible if the absence is having a substantial impact on the business (e.g., covering costs, service disruption), and you've exhausted reasonable support options. Courts/tribunals assess fairness based on the Acas Code of Practice on Disciplinary and Grievance Procedures. - **Key triggers after 7 months**: - OH reports indicate no likely return in the foreseeable future (e.g., 12+ months total absence projected). - You've implemented all reasonable adjustments (e.g., phased return, flexible hours, counseling access) without success. - The employee's condition is unlikely to improve, confirmed by medical evidence. - **Risks if rushed**: Dismissing too early (e.g., without updated medical info) could lead to unfair dismissal claims (up to £115,115 compensation or 1 year's pay) or disability discrimination claims (uncapped damages). After 2 years' service, employees have full unfair dismissal rights; otherwise, it's limited to discrimination claims. If the OH referrals suggest a potential return soon, delay dismissal. Re-refer to OH for an updated prognosis before proceeding. #### Process to Follow for Fair Dismissal Follow a structured, fair process to demonstrate reasonableness. Document everything meticulously. Aim for transparency and empathy—depression is a mental health issue, so involve HR and possibly legal advice early. 1. **Obtain Updated Medical Evidence (1-2 weeks)**: - Re-refer to OH or get a GP/specialist report (with employee consent). Ask specific questions: likely return date? Impact on role? Further adjustments possible? - If the employee refuses consent, explain it's necessary for support decisions; refusal may weaken their position but doesn't justify immediate dismissal. 2. **Conduct a Welfare Meeting (Informal First)**: - Invite the employee (or their representative) to a meeting to discuss their health, return plans, and support needs. This isn't disciplinary—focus on welfare. - Explore adjustments: e.g., reduced hours, remote work, or EAP (Employee Assistance Programme) access. - If no return is viable, inform them of potential capability concerns. 3. **Formal Capability Process (If Needed)**: - **First Formal Meeting**: Notify in writing (at least 48 hours' notice). Discuss OH evidence, business impact, and alternatives to dismissal. Allow the employee to respond (with a companion if requested). - **Review Period**: If there's hope of improvement, set a review period (e.g., 4-6 weeks) with interim OH check. - **Second Meeting**: If no progress, hold another to review. Consider alternatives like ill-health retirement (if pension scheme allows) or redeployment. - **Appeal Right**: Always offer an appeal meeting with a more senior manager. 4. **Decision and Notification**: - If dismissal is the outcome, it must be the "band of reasonable responses" (what a reasonable employer would do). Provide written reasons, notice pay (or PILON), and accrued holiday pay. - Effective date: End of notice period. For long-term absence, you may place on garden leave or pay in lieu. 5. **Additional Steps**: - **Reasonable Adjustments**: Document all attempts (e.g., your two OH referrals count, but show more if possible). - **Consult Union/Rep**: If applicable. - **Post-Dismissal**: Offer outplacement support; handle sensitively to mitigate discrimination risks. - **Timeline**: The full process might take 1-3 months, depending on medical input. #### Writing a Dismissal Letter (Template Outline) If dismissal proceeds, use formal headed paper. Keep it compassionate and factual. Here's a basic structure (customize with specifics; seek legal review): [Your Company Letterhead] [Date] [Employee's Name] [Their Address] Dear [Employee's Name], **Dismissal on Grounds of Capability Due to Ill-Health** I am writing following our meetings on [dates of meetings] and the occupational health reports dated [dates]. We have carefully considered your absence since [start date, e.g., 7 months ago] due to depression, including two referrals to occupational health and discussions on reasonable adjustments such as [list examples, e.g., phased return options]. Despite our best efforts to support your return, the medical evidence indicates it is unlikely you will be able to resume your duties in the foreseeable future [reference key OH findings, e.g., "projected absence exceeding 12 months"]. This prolonged absence has had a significant impact on [briefly state business reason, e.g., "team resources and service delivery"]. After exploring all alternatives, including [e.g., redeployment], we have regretfully concluded that we must terminate your employment on the grounds of capability. Your employment will end on [effective date, e.g., end of notice period, DD/MM/YYYY]. You will receive [notice pay/PILON] of [amount], plus payment for [accrued holiday, etc.], less deductions. Your final paycheck will be issued on [date]. You have the right to appeal this decision in writing within [e.g., 5 working days] to [appeal manager's name/contact]. If you have any questions, please contact me. We wish you well in your recovery. Yours sincerely, [Your Name] [Your Position] [Contact Details] Enclosures: [e.g., OH summary (redacted), appeal procedure]. #### Recommendations - **Seek Advice**: Consult ACAS (acas.org.uk, helpline 0300 123 1100), a solicitor, or HR specialist immediately—especially for disability aspects. Free ACAS early conciliation can help. - **Band of Reasonable Responses**: Ensure your actions align with what similar employers would do (e.g., no dismissal without medical evidence). - **Reason for Dismissal**: Clearly state "capability due to ill-health" in all docs to tie to the process. - **Avoid Discrimination**: Frame everything around business needs, not the condition itself. This is general guidance, not legal advice. Laws evolve, so verify with professionals for your situation. If the employee returns or circumstances change, pause the process.