Round #469

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?

**This is not legal advice.** Employment law in this area (particularly disability discrimination and unfair dismissal) is fact-specific, depends on jurisdiction (I am assuming UK law based on your terminology), the employee's length of service, the size/nature of your organisation, and the specific medical evidence. You must obtain tailored advice from an employment solicitor, ACAS, or your HR adviser before taking any steps toward dismissal. Getting this wrong can lead to unfair dismissal and/or disability discrimination claims (uncapped compensation for the latter). ### Key Legal Context Depression can amount to a **disability** under the Equality Act 2010 if it has a substantial and long-term adverse effect on normal day-to-day activities (long-term usually means 12 months or more, or likely to recur). At 7 months, this threshold may already be met or likely to be met. This triggers: - A duty to make **reasonable adjustments** (e.g., phased return, adjusted duties/hours, home working, additional support). - Protection against unfavourable treatment because of something arising from the disability (e.g., absence itself), unless the treatment is a proportionate means of achieving a legitimate aim. You have already obtained two occupational health (OH) reports — this is positive evidence that you have sought medical input. ### When Dismissal Can Be Considered There is **no fixed time period** after which dismissal becomes automatically fair. Dismissal on grounds of capability (long-term ill-health) can be fair if: - The employee is no longer capable of performing their role (or any suitable alternative). - You have followed a fair procedure. - You have considered all reasonable adjustments and alternatives to dismissal. - The prognosis is poor with no realistic return date in the near future. At 7 months, many employers begin formal capability proceedings if: - OH reports indicate no imminent return or significant ongoing restrictions. - Reasonable adjustments have been explored and are not feasible or have not enabled a return. - Business needs (e.g., cover arrangements, team impact) make continued absence unsustainable. However, tribunals often expect employers to wait longer where the condition is a disability and adjustments could help, especially in larger organisations. Dismissing too early risks a successful claim. ### Required Process (Fair Procedure) You must follow a fair, documented process. The key steps are: 1. **Continue gathering medical evidence** Obtain an up-to-date OH report (or GP report with consent) specifically addressing: prognosis, likely return date, recommended adjustments, and whether the employee meets the disability definition. 2. **Consider and document reasonable adjustments** Meet with the employee (and their representative if they wish) to discuss adjustments suggested by OH. Keep a written record of what was considered and why any were rejected as not reasonable. 3. **Formal capability / ill-health review meetings** - Invite the employee in writing to a formal meeting, giving them the right to be accompanied. - Discuss the length of absence, impact on the business, medical evidence, adjustments explored, and alternatives (e.g., redeployment, ill-health retirement if in a pension scheme). - Give the employee the opportunity to provide their views and any further medical evidence. - Set a review period if appropriate, or move to a final stage if the position is clear. 4. **Explore alternatives to dismissal** Document searches for suitable alternative roles (even at a lower grade if reasonable). 5. **Dismissal meeting and appeal** If dismissal is the only remaining option, hold a formal meeting, confirm the decision in writing with reasons, notice (or pay in lieu), and the right of appeal. Offer an appeal hearing (ideally heard by someone more senior and independent). Throughout, keep detailed written records of all meetings, correspondence, and decisions. Follow your own sickness absence or capability policy if you have one. ### Practical Next Steps - Do **not** dismiss yet. Hold a formal review meeting first, incorporating the latest OH advice. - Consider whether further adjustments or a final review period is still appropriate. - If the employee has more than 2 years’ service, they can claim unfair dismissal; disability discrimination risk exists regardless of service length. - Contact ACAS (0300 123 1100) for free guidance on the process, or instruct an employment lawyer to review the OH reports and advise on next steps. Acting without completing the above steps significantly increases legal risk. Seek professional advice promptly before any further action.

**I am not a lawyer and this is not legal advice.** Dismissing an employee for long-term sickness absence (especially where the condition may amount to a disability) is a high-risk area governed by employment law, the Equality Act 2010 (UK) or equivalent legislation elsewhere, and requires case-specific assessment. You must obtain tailored advice from an employment solicitor or qualified HR professional before taking any steps toward dismissal. ### Key considerations (general principles only) - **Disability status**: Depression can qualify as a disability if it has a substantial and long-term adverse effect on normal day-to-day activities. After 7 months of absence you are likely already in “long-term” territory. - **Reasonable adjustments**: You have a duty to consider and implement reasonable adjustments (e.g., phased return, adjusted duties, further support, flexible working). Occupational health referrals are evidence of good practice but do not automatically discharge this duty. - **Fair process**: Any dismissal must follow a fair capability procedure. Typical steps include: 1. Obtain up-to-date medical evidence (further OH report, GP consent, prognosis on return-to-work timeline and adjustments). 2. Meet with the employee (with the right to be accompanied) to discuss the absence, medical evidence, possible adjustments, and the risk of dismissal. 3. Allow the employee time to respond and explore all alternatives to dismissal. 4. If dismissal is the only remaining option, follow your contractual disciplinary/capability procedure and any statutory notice or payment requirements. - **Timing**: There is no fixed “7-month rule.” Tribunals look at whether you acted reasonably in all the circumstances, including the length of absence, prognosis, impact on the business, and efforts made to accommodate the employee. Premature dismissal without proper process frequently leads to unfair dismissal and/or disability discrimination claims. ### Recommended next actions - Commission a further occupational health report that specifically addresses: - Likely return-to-work date - Recommended adjustments - Whether the condition is likely to recur - Document every step taken to support the employee and explore alternatives. - Review your absence management policy and ensure it aligns with current law. - Consult an employment lawyer or your organisation’s HR adviser before issuing any warning or dismissal letter. If you need help drafting a **template** for an invitation-to-meeting letter, a capability review letter, or similar HR correspondence in C# (for example, using a document-generation library), provide more details about the output format you require and I can assist with that technical implementation. For the substantive employment decision itself, please speak to a qualified professional.