Round #948

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?

Dismissing an employee who has been absent for 7 months due to depression—particularly when they have been referred to Occupational Health (OH) twice—requires careful handling to comply with employment law, particularly in jurisdictions like the UK (assuming UK context based on reference to Occupational Health). The key considerations are fairness, reasonableness, and adherence to statutory and best practice procedures. ### 1. **Grounds for Dismissal** Long-term sickness absence due to a disability (such as clinical depression) may potentially lead to a fair dismissal, but only if the employer follows a fair process and can demonstrate that the dismissal is a proportionate means of achieving a legitimate aim. The potential grounds for dismissal include: - **Capability** (under the "capability" category of potentially fair reasons for dismissal under the Employment Rights Act 1996). - **Disability** (if the employee is disabled under the Equality Act 2010, the employer must also consider reasonable adjustments and risks claims for disability discrimination). ### 2. **Is the Employee Disabled?** Depression may constitute a disability under the **Equality Act 2010** if: - It has a **substantial and long-term adverse effect** on the employee’s ability to carry out normal day-to-day activities. - "Long-term" means the effect has lasted or is likely to last for at least 12 months. If the employee is disabled: - The employer has a **duty to make reasonable adjustments**. - Dismissal could lead to claims of **unlawful disability discrimination**, including failure to make reasonable adjustments or discrimination arising from disability. ### 3. **Process to Follow Before Considering Dismissal** Even after 7 months’ absence and two OH referrals, dismissal should not be considered without following a fair and thorough process: #### a. **Obtain and Review Occupational Health Reports** - Ensure both OH reports have been received and reviewed. - OH should provide advice on: - Likely prognosis and return-to-work date. - Whether the condition is likely to be a disability. - Recommended reasonable adjustments. - Fitness for work. If the reports indicate no realistic prospect of return in the foreseeable future, this supports a capability dismissal. #### b. **Hold a Formal Sickness Absence Meeting** - Invite the employee to a formal meeting to discuss: - Their current health and prognosis. - The OH recommendations. - Any reasonable adjustments that could facilitate a return. - The impact of continued absence on the business. - Allow the employee to be accompanied (e.g., by a colleague or trade union rep). #### c. **Consider Reasonable Adjustments** - Explore all possible adjustments, such as: - Phased return. - Remote working. - Modified duties. - Additional time off for treatment. - Failure to consider adjustments could lead to a discrimination claim. #### d. **Warn the Employee of Potential Dismissal** - If, after considering all factors, dismissal is being considered, inform the employee in writing that this is a possibility. - Give them a chance to respond. #### e. **Make a Decision and Notify in Writing** - The decision to dismiss must be based on objective evidence (e.g., medical advice, business needs). - Notify the employee of the decision in writing, including their right to appeal. #### f. **Allow an Appeal** - Offer a formal appeal process if the employee wishes to challenge the decision. ### 4. **When Can You Consider Dismissal?** There is **no fixed time** after which dismissal is automatically acceptable. However, after **7 months of absence**, especially with two OH referrals indicating poor prognosis, dismissal may be fair **if**: - All steps above have been followed. - Medical evidence suggests no likely return within a reasonable timeframe. - The business cannot reasonably accommodate ongoing absence. - The decision is reasonable in the circumstances (as assessed by an Employment Tribunal). Case law (e.g., *Shamoon v Chief Constable of the Royal Ulster Constabulary*) supports that dismissal due to long-term sickness can be fair if properly managed. ### 5. **Risks of Getting It Wrong** - **Unfair dismissal claim** (if employed over 2 years). - **Disability discrimination claim** (no qualifying period needed). - **Reputational and financial costs**. ### 6. **Best Practice Recommendations** - Keep detailed records of all communications, OH reports, and meetings. - Take legal advice before proceeding to dismissal. - Consider last-resort options like offering a **compensated exit** (via a settlement agreement) to avoid tribunal risk. --- ### Summary You can **consider dismissal** after 7 months’ absence due to depression **only if**: - You have followed a fair capability process. - Obtained and acted on OH advice. - Considered reasonable adjustments. - Consulted the employee. - Reached a reasonable conclusion that the employee is unlikely to return in the foreseeable future. Dismissal should be a **last resort**, and legal advice is strongly recommended before proceeding.

There is no fixed timeframe for dismissal due to long-term sickness, but after 7 months of absence with no realistic prospect of return, dismissal may be considered fair if the following process is followed: 1. **Obtain medical evidence** – You have already referred the employee to occupational health twice; ensure you have up-to-date, clear reports on their condition, prognosis, and any possible adjustments. 2. **Consult with the employee** – Hold a formal meeting to discuss the medical reports, their views on recovery and return to work, and whether reasonable adjustments could help. 3. **Consider alternatives** – Explore modified duties, phased return, or other accommodations. Failure to consider these could lead to claims of disability discrimination. 4. **Assess capability** – If the medical advice indicates no likely return in the foreseeable future, you may conclude that the employee is unable to perform their role. 5. **Make a reasonable decision** – Dismissal should only follow if it is reasonable in the circumstances, based on medical advice and consultation. 6. **Follow a fair procedure** – Use your capability or sickness absence policy, allow appeal rights, and document all steps. If the employee is disabled (depression is likely to be a disability under the Equality Act 2010), you must also consider whether you have fulfilled your duty to make reasonable adjustments. Dismissal may be justified on grounds of **capability**, but failure to follow a fair process or neglecting disability obligations risks claims for unfair dismissal or disability discrimination. You can proceed with dismissal now if, after this process, there is no prospect of return and the decision is reasonable. Always seek HR or legal advice before issuing any dismissal letter.