Round #443

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 Considerations for Dismissing an Employee on Long-Term Sick Leave Due to Depression (UK Context) **Important Disclaimer**: I am not a lawyer, and this is general guidance based on UK employment law (primarily the Equality Act 2010 and ACAS guidelines). Employment situations are highly fact-specific, and depression may qualify as a disability, which imposes additional duties on employers to avoid discrimination claims. Always consult a qualified employment law specialist, HR professional, or ACAS for tailored advice before taking action. Incorrect handling could lead to unfair dismissal or disability discrimination claims, potentially resulting in tribunals awarding compensation (uncapped for discrimination). Assuming this is in the UK (common for queries involving "occupational health"), here's a precise overview of when you might consider dismissal and the required process. #### When Can You Consider Dismissal? There is **no fixed timeline** (e.g., 7 months does not automatically trigger dismissal rights). Dismissal for long-term absence due to illness (a "capability" issue) must be fair and reasonable, considering: - **Business Impact**: Continued absence must be causing significant disruption (e.g., inability to cover the role, recruitment costs, or team burden). Document this evidence. - **Employee's Condition**: Depression is often a disability under the Equality Act 2010 if it substantially and long-term affects daily activities. You've already referred to occupational health (OH) twice, which is positive, but you must show you've exhausted reasonable support. - **Prognosis and Adjustments**: If OH reports indicate no likely return in the foreseeable future (e.g., 6-12 months) and no viable adjustments (e.g., phased return, flexible hours, or role changes), dismissal becomes defensible. At 7 months, you're approaching a point where further reviews are needed, but rushing could be seen as discriminatory. - **Mitigating Factors**: Consider length of service, past performance, and any triggers for the absence. If the employee has 2+ years' service, they have unfair dismissal rights (unless the contract allows otherwise). In summary: You can consider dismissal **after** demonstrating you've followed a supportive process, made reasonable adjustments, and obtained medical evidence showing no realistic return. ACAS suggests reviewing after 4-6 months of absence, but only proceed to dismissal if support is exhausted—typically after 9-12 months or longer in disability cases. #### Required Process to Follow Follow the **ACAS Code of Practice on Disciplinary and Grievance Procedures** (statutory but not legally binding—tribunals consider if you've followed it reasonably). The process must be fair, transparent, and documented. Aim for consistency with how you've handled similar cases. Key stages for capability dismissal due to absence: 1. **Initial Support and Monitoring (Ongoing, Pre-Formal)**: - Maintain regular contact (e.g., welfare calls every 2-4 weeks) without pressuring the employee. - Keep absence records (e.g., via HR system) and review triggers in your sickness policy (e.g., after 28 days, formal OH referral). - You've already done two OH referrals—ensure reports cover: diagnosis, prognosis (return date?), recommended adjustments, and fitness for work. If needed, request a further OH or GP report (with employee consent). - Explore adjustments early: e.g., counseling via EAP, reduced hours on return, or temporary cover. Document why certain adjustments aren't feasible. 2. **Informal Review Meeting (If Not Already Done)**: - Invite the employee to a welfare meeting (informal, not disciplinary). Discuss their health, support needs, and return plans. - Right to be accompanied (e.g., by a colleague or union rep). - Outcome: Agree an action plan (e.g., further OH, phased return). Set review dates. 3. **Formal Capability Process (Trigger After ~3-6 Months Absence)**: - **First Formal Meeting**: Notify in writing (at least 48 hours' notice). Explain it's about capability due to absence, share evidence (e.g., absence records, OH reports, business impact). - Discuss: Health update, prognosis, adjustments tried/possible, alternatives to dismissal (e.g., ill-health retirement if pension scheme allows). - Employee's input: They can provide medical evidence (e.g., fit note). - Outcome: Written summary. If improvement/return possible, set a review period (e.g., 4-6 weeks) with targets (e.g., return date). - If no improvement likely: Issue a **first written warning** (valid 6-12 months), outlining concerns, adjustments, and consequences of no change. - **Review Period(s)**: Monitor progress. Hold 1-2 review meetings. If still absent, escalate. - **Second Formal Meeting (If Needed)**: Similar to first, but issue a **final written warning** if partial progress but ongoing issues. Extend review if new evidence emerges. 4. **Dismissal Decision (After Exhausting Warnings)**: - **Final Review Meeting**: If absence persists (e.g., now 9+ months) and OH confirms no return in reasonable time (e.g., 3-6 months), hold a hearing. - Present full evidence: Absence history, OH advice, adjustments attempted, business justification. - Explore all alternatives: Redeployment? Ill-health dismissal only if no other options. - Adjourn to decide. If dismissing, explain reasons verbally and in writing. - **Notice and Termination**: - Provide notice pay (or garden leave if appropriate). - Termination date: From last day of work or end of notice. - Reason: "Capability due to ill-health" (fair reason under Employment Rights Act 1996). - **Pension/Ill-Health Retirement**: Check if eligible—dismissal might not apply if they qualify. 5. **Right to Appeal**: - Employee has 5 working days to appeal in writing. - Hold an appeal meeting (independent manager) within 1-2 weeks. - Outcome: Uphold, overturn, or modify (e.g., extend sick pay). Final decision in writing. #### Additional Requirements - **Documentation**: Keep detailed records of all meetings, emails, OH reports, and decisions. This protects against claims. - **Equality Act Duties**: - **Reasonable Adjustments**: Must consider (e.g., remote work if feasible). Failure could be discrimination arising from disability. - **Indirect Discrimination**: Ensure process doesn't disadvantage those with mental health issues. - **Enhanced Sick Pay**: If your policy includes contractual sick pay beyond SSP (Statutory Sick Pay, ~£109/week for 28 weeks), factor this in—ending it prematurely could breach contract. - **Timeframes**: Whole process should take weeks/months, not days. At 7 months, start/escalate formal stages if not already. - **Potential Claims**: - Unfair dismissal: If <2 years' service, limited rights; otherwise, up to £115,115 compensation. - Disability discrimination: Unlimited compensation; e.g., failure to adjust could cost thousands. - Consult ACAS early warning service for free mediation. #### Next Steps Recommendation - Review your sickness absence policy and ensure compliance. - Immediately schedule a welfare/formal review if not recent. - Contact ACAS (0300 123 1100) or a solicitor for a case audit—especially with two OH referrals, you may have strong grounds if prognosis is poor. - If in another jurisdiction (e.g., US/EU), laws differ (e.g., ADA in US requires interactive process); clarify for specific advice. This process ensures fairness and minimizes risk. If you provide more details (e.g., country, contract terms), I can refine this.

### Disclaimer I am not a lawyer or HR professional, and this is not formal legal advice. Employment law varies by jurisdiction (I'm assuming UK based on common terminology like "occupational health"). Always consult a qualified employment law specialist, ACAS (Advisory, Conciliation and Arbitration Service), or your legal team for advice tailored to your situation. Wrongful dismissal can lead to tribunal claims, so proceed with extreme caution. The information below is general guidance based on standard UK practices under the Equality Act 2010 (which protects disability, including mental health conditions like depression) and ACAS Code of Practice on disciplinary and grievance procedures. ### At What Point Can You Consider Dismissal? In the UK, depression can qualify as a disability under the Equality Act 2010 if it has a substantial and long-term adverse effect on daily activities. This means you must make "reasonable adjustments" before considering dismissal for long-term absence due to sickness (capability dismissal). You cannot dismiss solely because of the condition itself—dismissal must be for the inability to perform the role due to prolonged absence, after exhausting support options. - **Key Threshold for Consideration**: After 7 months of absence (as in your case), with two occupational health (OH) referrals already made, you may start considering dismissal **if**: - The absence is having a substantial impact on the business (e.g., role cannot be covered indefinitely, affecting operations or other staff). - You've provided ongoing support, including reasonable adjustments (e.g., phased return, flexible hours, additional therapy access). - Medical evidence (from OH or the employee's GP) indicates no likely return to work in the foreseeable future (e.g., within the next 3-6 months) or that the employee is unlikely to perform their role even upon return. - You've followed a fair process (see below) and explored all alternatives to dismissal. You **cannot** dismiss immediately after 7 months—UK law requires a supportive, consultative approach first. ACAS recommends not rushing; many employers set internal policies for review after 6-12 months, but this must be individualized. If the employee has 2+ years' service, they have the right to claim unfair dismissal, so evidence of fairness is crucial. If the depression is deemed a disability, you must prove you've done everything reasonable to avoid dismissal, or it could be discrimination. ### Process to Follow Follow a structured, fair capability procedure aligned with the ACAS Code (non-statutory but tribunals consider compliance). Document everything meticulously. The process typically takes 4-8 weeks (or longer if complex). Involve HR, and consider union reps if applicable. 1. **Review and Gather Evidence (Pre-Formal Stage)**: - Review absence records, OH reports, and any welfare meetings. - Confirm if depression is a disability (OH can advise). - Assess business impact (e.g., cost of cover, team morale). - Notify the employee in writing that you're concerned about their prolonged absence and invite them to a welfare meeting (even if remote or via representative). 2. **Informal Support and Adjustments (Ongoing)**: - You've already referred to OH twice—good start. If not done, request updated medical prognosis (with employee's consent). - Discuss and implement reasonable adjustments: e.g., counseling, medication review, home working, reduced hours on return. - Hold regular welfare meetings (monthly) to update on health, expected return, and support needs. - Explore alternatives: ill-health retirement, redeployment to a suitable role. 3. **Formal Capability Process**: - **Trigger**: If informal support doesn't resolve (no return expected soon), write to the employee inviting them to a formal capability meeting. Explain it's about absence due to capability, not the condition itself. Provide copies of relevant docs (e.g., OH reports, absence policy). - **First Formal Meeting** (with a companion allowed, e.g., union rep or colleague): - Discuss absence impact, review medical evidence, explore adjustments/return plans. - Set a review period (e.g., 4-6 weeks) with clear targets (e.g., "provide updated prognosis by [date]"). - Adjourn if needed for more info (e.g., another OH referral). - **Review Period**: Monitor progress. Hold follow-up meetings. If no improvement (e.g., still no return date), proceed. - **Second Formal Meeting** (if needed): Reassess. If dismissal seems likely, explain why and outline next steps. 4. **Decision to Dismiss**: - Only if all options exhausted and return is not foreseeable. - Reasons must be fair: e.g., "Prolonged absence impacting business viability." - Consider length of service, performance history, and alternatives. - Notify in writing: Include reason for dismissal, effective date (usually end of notice period or immediately if paid in lieu), right to appeal, and any payments (e.g., notice pay, accrued holiday). 5. **Dismissal Notification**: - **Letter Structure** (see sample below): Clear, empathetic, factual. Avoid mentioning the condition directly to prevent discrimination claims. - Effective date: Typically after notice period (check contract; statutory minimum 1 week per year of service). - Payments: Full pay for notice (or PILON), SSP if applicable, redundancy if role is at risk (unlikely here). 6. **Appeal Process**: - Employee has right to appeal in writing within 5-7 working days. - Hold appeal meeting (independent manager) within 1-2 weeks. - Outcome in writing; final decision. 7. **Post-Dismissal**: - Update records, provide P45. - If disability-related, prepare for potential tribunal (employee has 3 months to claim). - Band of Reasonable Responses: Tribunals ask if your actions were within the "band of reasonable responses" a reasonable employer would take. With 7 months absence and two OH referrals, you're likely in a strong position if process is fair—but poor process can make it unfair. ### Sample Dismissal Letter Template Use this as a starting point. Customize and have it reviewed by legal/HR. Send by recorded delivery. --- [Your Company Letterhead] [Date] [Employee's Name] [Employee's Address] Dear [Employee's Name], **Dismissal on Grounds of Capability Due to Prolonged Sickness Absence** I am writing following our formal capability meetings on [dates of meetings], where we discussed your ongoing absence from work since [start date of absence, e.g., January 2023]. Despite our efforts to support your return, including two referrals to Occupational Health on [dates] and discussions around reasonable adjustments, the medical evidence indicates that a return to work is not foreseeable in the near future. Your prolonged absence has had a significant impact on the [department/team/business], and it is not sustainable to continue covering your role indefinitely. After careful consideration and exploration of all alternatives, including [list any adjustments explored, e.g., phased return, redeployment], I have decided that dismissal is the appropriate course of action. This is on the grounds of capability due to prolonged sickness absence, in line with our [company sickness absence policy]. Your employment will end on [effective date of termination, e.g., 30 days from today, accounting for notice period]. You will be paid in lieu of notice [or serve notice if applicable], along with any accrued but untaken holiday pay. Your final pay will be [amount], less deductions. Statutory Sick Pay has been paid up to [date]. You have the right to appeal this decision in writing within [e.g., 5 working days] to [appeal contact, e.g., HR Director]. The appeal will be heard by [independent person] at a meeting arranged as soon as possible. We wish you well in your recovery and future endeavors. If you require a reference, please let us know. For any queries on benefits or payments, contact [HR contact]. Yours sincerely, [Your Name] [Your Position] [Contact Details] --- ### Additional Tips - **Timeline**: Start formal process now if not already; aim to conclude within 1-2 months. - **Risks**: High risk of disability discrimination claim if adjustments were inadequate. Get OH to confirm "no reasonable adjustments possible." - **Resources**: ACAS website (acas.org.uk) for full guidance; Equality Act factsheet; consider mediation. - **Band of Reasonable Responses**: Ensure your process shows fairness—e.g., empathy, evidence-based decisions—to defend in tribunal. If this doesn't resolve your query or you need help with something else (e.g., policy templates), provide more details. Consult professionals immediately.