Round #977

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?

I'm not a lawyer, but I can provide general guidance based on UK employment law and HR best practice. If you are outside the UK, please specify your jurisdiction, as laws vary. **1. When can dismissal be considered?** Dismissal for long-term sickness absence (including depression) is potentially fair under the category of "capability" (i.e., the employee is not capable of doing their job due to ill health). However, dismissal should always be a last resort, after all reasonable steps have been taken to support the employee’s return to work. **Key points:** - There is no fixed period after which dismissal is automatically fair. Seven months is a significant absence, but you must consider the individual circumstances. - You must have up-to-date medical evidence (e.g., from Occupational Health) about the employee’s prognosis and ability to return to work. - You must consider reasonable adjustments if the employee is disabled under the Equality Act 2010 (depression can be a disability). - You must consult with the employee and consider alternatives to dismissal (e.g., redeployment, adjustments, phased return). **2. What process must you follow?** **A. Gather Medical Evidence** - Obtain recent Occupational Health reports. - Seek the employee’s GP or specialist input if necessary (with consent). **B. Consultation** - Meet with the employee to discuss their health, prognosis, and possible return to work. - Allow the employee to be accompanied at meetings. - Discuss any reasonable adjustments or alternative roles. **C. Consider Reasonable Adjustments** - Under the Equality Act 2010, you must consider adjustments to help the employee return to work. **D. Review Alternatives** - Consider redeployment, flexible working, or other alternatives to dismissal. **E. Final Meeting** - If, after all steps, the employee is still unable to return and there is no prospect of return in a reasonable timeframe, invite them to a final capability meeting. - Allow them to make representations. - Consider all evidence before making a decision. **F. Decision and Right of Appeal** - If you decide to dismiss, confirm the decision in writing, stating the reasons and the right to appeal. **Summary Table:** | Step | Action | |-----------------------------|------------------------------------------------------------------------| | 1. Medical Evidence | Up-to-date OH reports, GP input | | 2. Consultation | Meet employee, discuss prognosis, adjustments | | 3. Reasonable Adjustments | Consider and implement where possible | | 4. Alternatives | Redeployment, flexible working, etc. | | 5. Final Meeting | Invite to capability hearing, allow representation | | 6. Decision & Appeal | Written outcome, right to appeal | **Important:** - Document every step. - Ensure a fair and consistent process. - Consider legal advice, especially if the employee may be disabled under the Equality Act. **References:** - [ACAS guidance: Managing absence](https://www.acas.org.uk/absence-from-work) - [Equality Act 2010](https://www.legislation.gov.uk/ukpga/2010/15/contents) **If you are outside the UK, please specify your country for tailored advice.**

You may consider dismissal if the employee is unable to return to work after reasonable adjustments and medical advice, typically after prolonged absence (such as 7 months), but only after following a fair process: consult with the employee, obtain up-to-date medical evidence (including occupational health reports), consider alternative roles or adjustments, hold formal meetings to discuss options, and give the employee the opportunity to respond before making a decision; dismissal should be a last resort and must comply with employment law and your company’s policies.