Dismissing an employee with depression (A brief guide)
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In this guide, we will discuss dismissing an employee with depression, some statistics, the cost for employers, what are some signs you can recognize in your employees and how you can help, the equality act and what it means, and compensation options.
Dismissing an employee with depression: Is it legal?
Depression is one of the most common mental illnesses that affect millions worldwide and it is considered a very disabling condition.
However, if you are battling with depression you may be wondering if it is a good idea to report it to your employer or if you can actually get fired because of it.
It is considered very normal to feel a bit down from time to time or feeling stressed due to your work or certain situations you are going through in your life, but there is a fine line between feeling this way every now and then and feeling like this most of the days.
This is when depression constitutes a disability when it starts impacting your day to day activities.
However, it is important to have received the diagnosis from a professional and keep the documentation to show you have depression if your employer requires a medical history or if you would like to report it directly to them.
Telling your employer can result in two options, either you get the support you need or you could end up feeling worse because your colleagues or your boss can start treating you differently perhaps even being looked over for other job opportunities within the company.
In the US the Americans with Disabilities Act provides some protection against discrimination and if someone decides to disclose a disability they may have the option to sue in the event of discrimination.
Moreover, in Australia, the dismissal of one employee required the company to pay the employee $140.000 AUD in compensation and $20.000 AUD in penalties by dismissing an employee due to mental illness.
This, determined by the Federal Court when the case has been assessed and determined the dismissal is related to workplace-related depression and anxiety.
According to the Health and Safety Executive (HSE) annual statistics 602.000 workers in Great Britain suffer from work-related stress, depression or anxiety (Labour Force Survey) in 2018/19.
The related causes identified were workload (44%), lack of support (14%), violence, threats or bullying (13%), changes at work (8%) and other (21%).
Additionally, they say that “longitudinal studies and systematic reviews have indicated that stress at work is driven largely by psychosocial factors and is associated with common conditions such as heart disease and anxiety and depression and may play a role in some forms of musculoskeletal disorders”
However, some employers don’t consider depression as a disability and before considering telling your Human Resources manager, is important to dig into this matter a bit deeper.
People who have depression ask about their rights as an employee, whose off work with depression.
Employee rights should be known to every employee, whether with a mental condition or not.
What is the actual cost for employers?
Many businesses have realized that stress and related illnesses have a high impact on their operational efficiency and brand reputation where dismissals and sick leave come with a high cost.
Some of the identified factors associated with stress include but are not limited to (workspace.co.uk):
- High levels of absenteeism
- Increased staff turnover
- Increased recruitment costs
- Low productivity
- Poor public image
According to the HSE statistics, 12.8 million Working days were lost due to work-related stress, depression or anxiety, resulting in a major impact on companies having their employees absent due to mental illnesses.
Employers responsibility
Employers should guarantee their employees wellbeing, prevent and mitigate the manifestation of stress-related illnesses derived from work-related activities, even though there are no specific regulations to deal with stress in the UK.
The health and safety legislation under the Health and Safety at Work etc Act 1974 and the Management of Health and Safety at Work Regulations 1999 provide the general duties of employers to their employees for example:
“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety, and welfare at work of all his employees.”
When employers make adjustments or implement measures to reduce stress at work, they can actually reduce some of the costs associated with sick pay, replacement cover, and recruitment, improve the perception of employees in regards to commitment, relationships between colleagues may improve and also relationships towards customers.
What is considered work-related stress?
According to workspace.co.uk, there may be several work-related stress situations such as overwork, job insecurity, over-promotion, lack of training, bad working relationships, bullying or harassment, and personal issues.
Some of the signs or symptoms you can identify in yourself if you are depressed or stressed due to work-related tasks may be:
- Not enjoying your work as you used to before.
- Social activities with co-workers don’t interest you anymore.
- Arriving late to work.
- Frequent sick leave.
- You are unable to concentrate or co-workers may perceive you are distracted most of the time.
- You have stopped following a personal hygiene routine or you are not taking care of your appearance as you used to.
What can I do as an employer?
If you have identified one of your team members is showing signs of stress or depression, it is important to approach them in a friendly and empathetic way and ask them, even though you perceive their performance and behavior as inappropriate.
Identify in your employee’s speech if this situation has developed due to stress-related to their work-related activities or if it is due to personal circumstances.
Moreover, make the necessary adjustments if you have identified it is related to the workload or the number of working hours, where you could reduce the amount of work or reassign the employee or reduce the number of hours as temporary or permanent measures.
After acknowledging the situation, and if you have identified it is related to their personal circumstances, you may offer some time off for them to go to their doctor and seek professional help.
Equality act
The Equality Act 2010 is the law that protects you against discrimination and gives you the possibility to challenge it.
Additionally, it includes a list of “protected characteristics” such as age, disability (including mental health problems), gender reassignment, marriage, and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
This Act protects you from discrimination when you apply for work, are already working or when leaving your work.
Also, it protects you when using services such as shops and hospitals, when you buy or rent properties, among others.
On top of it, you don’t need to have a certain type of mental illness or mental health condition to get protected under this Act, you only need to show that your mental health illness is a disability.
Some of the mental health conditions that may be covered are:
- Depression
- Schizophrenia
- Bipolar disorder
- Stress and anxiety
- Obsessive-compulsive disorder (OCD)
According to Pamela Macaulay from Mortin Fraser Lawyers, “If it is the case that an employee is suffering from depression, or if this is suspected, they may be covered by the EqA”.
She explains that it is important to think about your normal day to day activities and how they have been affected since “it is the type of information on which evidence will be lead if an employment tribunal claim is raised and the employer does not agree that the employee meets the definition of “disabled” for the purposes of the EqA”.
Additionally, the Equality Act 2010 indicates that a disability can arise from a variety of impairments such as:
- Sensory impairments, such as those affecting sight or hearing.
- Impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression, and epilepsy.
- Organ-specific, including respiratory conditions such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease.
- Learning disabilities.
- Mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive-compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behavior.
- Mental illnesses such as depression and schizophrenia.
Example from the Equality Act 2010
“A woman has two discrete episodes of depression within a ten-month period. In month one she loses her job and has a period of depression lasting six weeks. In month nine she suffers a bereavement and has a further episode of depression lasting eight weeks. Even though she has experienced two episodes of depression she will not be covered by the Act. This is because, as at this stage, the effects of her impairment have not yet lasted more than 12 months after the first occurrence, and there is no evidence that these episodes are part of an underlying condition of depression which is likely to recur beyond the 12-month period”.
What should my employer do to help me?
Your employer should make the necessary adjustments to mitigate or worsen your condition.
For instance, if you are suffering from anxiety due to your workload, your employer could make adjustments to reduce the workload or to reduce the hours.
Additionally, your employer should allow you to attend some time off to attend medical appointments or support you when you are having to attend psychotherapy.
Am I entitled to compensation?
If your dismissal was unfair or due to the circumstances the tribunal considers it is disproportionate there may be two types of compensation or awards (Stylist.co.uk):
- The basic award is calculated on a week’s pay up to a cap and consists of a fixed amount based on your age and your length of service.
- The compensatory award, which is the greater of a capped figure (about £78-80k) or a year’s pay.
In addition, if the tribunal considers the reason for dismissal arose from a disability or your employee failed to make the necessary adjustments as we have discussed previously, then there is no cap.
Why is this blog about “dismissing an employee with depression” important?
As an employee, you have to be aware of your rights, especially when dealing with being dismissed due to depression or any other mental health illness.
It is important to document yourself and be ready to fight back in the case of wrongful dismissal or unfair dismissal.
Additionally, the Equality Act 2010 protects you from discrimination due to a disability.
This helps to avoid employers from treating disabled employees less favorably due to their disability or because of a consequence of their disability.
Additionally, employers should guarantee their employees wellbeing, health, and safety, meaning that they are under a duty to make any adjustments to the role or workplace if the disability is leaving the employee at a disadvantage compared to other colleagues.
Please feel free to comment on the content of this blog post in the comments section below!
Recommended reading
- Equality Act 2010
- Overcoming Depression and Low Mood
- Employees With Depression Have Twice Absenteeism Rate, Cost U.S. $23 Billion (OPEN MINDS Weekly News Wire Book 2013)
- What to do when an employee is depressed : a guide for supervisors (SuDoc HE 20.8108:D 44/3)
- You Can Do All Things: Drawings, Affirmations and Mindfulness to Help With Anxiety and Depression
