The number of workers needing sick leave to deal with mental health issues has been on the rise for many years. But what happens if you are off sick with depression or stress? Can you be sacked on grounds of poor mental health?
In many cases, people suffering with depression or stress have protections at work. If employers wish to sack workers suffering poor mental health, they must tread carefully. Unfair dismissal on grounds of disability can be a very expensive tribunal claim.
An employer can sack you for being off sick with depression. This would be on “capability grounds” which would mean the employer had assessed there being no prospect of you successfully returning to your job. However, this is not a step that can be taken on a whim. Proper processes must be followed.
Our guide looks at protections those suffering depression and other mental illness have under UK employment law. We’ll also explain what an steps an employer would have to take to fairly dismiss an employee because of depression.
Time off Work for Mental Health – Statistics
9.8% of all sick days taken in 2020 / 21 were because of poor mental health. This means that 14.63 million days off were taken by UK workers due to stress, depression, and other mental illness. (ONS)Sickness Absence in the UK Labour Market 2021 – ONS
During the same period, 822,000 workers were reported as suffering from work related stress, depression, or anxiety (HSE). This accounts for over 48% of all work related illness.UK Health & Safety Statistics 2021 – HSE
Employment Law & Depression
One of the core principles of UK employment law centres around the employer’s duty of care to workers.
It is the responsibility of the employer to ensure your health, safety, and welfare in the workplace. These responsibilities extend to protecting your mental health. If your depression is considered a disability, your employer must make reasonable adjustments to allow you to perform your role.
In cases where depression is considered a disability, dismissing a worker because they are suffering from the condition is very risky.
Disability is considered a protected characteristic. This means employees have protection from unfair dismissal from the first day of their employment. This is different to the more general protections from unfair dismissal which don’t apply until two years of employment.
Depression at Work & Disability Discrimination
You are protected from unfair dismissal if depression or other mental illness is considered a disability.
But when is depression considered a disability meaning you are protected from discrimination at work?
Depression will be considered a disability when:-
- It has a long term effect on your ability to perform normal day to day activities.
- You have been suffering from its effects for 12 months or more.
This definition is laid out in the Equality Act (2010). Source: UK Gov “when a mental health condition becomes a disability”
If your work performance has been affected by depression, it will be obvious that your ability to perform day to day tasks is impaired.
However, it can be tricky to prove that your depression has been affecting you long term. The symptoms of mental health conditions like stress and depression can be intermittent.
Impacts of Mental Health Issues on Work Performance
Poor mental health amongst employees can have a huge impact on overall workplace productivity. It is in the employer’s best interests to create a supportive work environment.
Unfortunately, the symptoms of depression or anxiety in the workplace can lead to disciplinary action. If an employer is unaware that an employee is struggling with their mental health, the symptoms can look like a poor work ethic.
Top 3 Symptoms of Depression & Stress in the Workplace
- High levels of sickness absence / absenteeism.
- Poor concentration which can make workload management and multi tasking difficult.
- Irritability and paranoia – this can affect relationships with co-workers and managers.
All of these symptoms can affect morale of the entire team, and negatively affect the office dynamic. It’s vital for businesses to give proper support to all employees and fulfil their responsibilities to support good mental health at work.
Can You Be Sacked Due to Depression?
If you are suffering from depression and it’s affecting your work performance, you might be understandably concerned about being sacked.
Whilst an employer can sack you because of the effects of depression on work performance, they must follow a fair dismissal process. It will only be legal to sack you if you are no longer able to do your job properly because of your illness, and there is no prospect of recovery.
If your employer dismisses you and has not followed a proper process, or made reasonable adjustments, you may be able to take them to an employment tribunal.
Fair Dismissal on Grounds of Mental Health
When an employee is dismissed due to ill health, an employer will look to dismiss them on capability grounds.
To dismiss fairly on capability grounds, the employer must be able to show that it was reasonable for them to do so. This means the employer must thoroughly document that the worker’s health condition means it’s impossible for them to perform their role.
The employer also has a statutory obligation to make reasonable adjustments. That means they must make reasonable changes which would help the worker to perform their role.
The employer should be able to show they’ve looked at all options and considered requests from the employee. There’s no set definition of what types of adjustment would be reasonable, as this will vary within different businesses.
Fair Dismissal Process
To dismiss an employee suffering from depression or other mental health issues fairly, an employer must act reasonably and follow a full and fair procedure.
The definition of reasonable within uk employment law is vague. However, an employer must undertake a full and fair investigation of the employee’s circumstances. All relevant facts must be gathered.
Once the investigation is complete, the employer must be able to demonstrate they have good reason to conclude the employee does not have the capacity to do their job. They need to have evidence to support that conclusion.
Steps an Employer Should Take During Capability Procedures
Where an employer is looking to investigate a worker’s capability to do their job, there are a number of steps that should be taken. Any gaps or improper procedure, may leave the employer open to an expensive claim at tribunal.
As an employee, it’s important to engage fully with a capability procedure. Failing to do so will mean you may miss the opportunity to submit information to support your case to continue your role.
5 Steps to Ensure Fair Capability Procedures
- Investigate the employee’s mental health condition. This might include a review of previous fit notes submitted.
- Request an assessment of the employee’s prognosis from a medical professional.
- If appropriate, obtain an occupational health assessment of any reasonable adjustments which could be made to support the employees role.
- Give the employee opportunity to provide further medical evidence if they don’t agree with medical reports done on behalf of the employer.
- Discussing all possible options with the worker to make adjustments to support them in their role, implementing them, and assessing what difference they made.
Unfair Dismissal due to Mental Health
There are a number of ways in which a dismissal on grounds of depression, stress, or other mental health condition could later be found unfair.
How Dismissals Can be Unfair
- Where the employee has 2 years service, any failure to follow full procedure for fair dismissal could result in an employment tribunal ruling the dismissal unfair.
- If the mental health condition was deemed a disability, it could lead to a dismissal being found to be automatically unfair. This protection is in place from day 1 of employment.
- An employer may fail to make reasonable adjustments to reduce disadvantage suffered due to mental health issues. This can be determined to be unlawful discrimination. The onus is on the employer to prove they made all possible adjustments.
- If depression, stress, or mental ill health is caused by work related conditions the employer may be found to have breached their duty of care to the employee.
Whilst it is possible to be dismissed due to depression, it is fraught with legal risk for the employer. Failure to follow the right procedures to sack an employee suffering with mental health issues, can result in expensive legal proceedings being brought against the employer.
If you are an employee and worried about being sacked whilst off sick with depression you should contact ACAS.
- Dismissal due to depression – Croner.
- Dismissing an employee due to mental health – Davidson Morris.
- Our guide on taking time off work for mental health talks about your other employment rights when off work sick.
- Can work sack you for being off sick? A general overview about dismissal and sick leave.