LH Writes: I have an employee who did not disclose upon starting their job that they had a history of poor mental health. Of late, their performance has been dwindling and they have started taking time off citing depression.  What are my rights in this situation and how should I handle this?

Employees are under no general obligation to inform you of any medical conditions they have before you offer them a job.

Some employers are reluctant to deal with sickness absence when it comes to depression because they feel out of their depth – there is no fixed recovery plan that can be implemented like there is in relation to absence for a broken bone or an operation, for example. However, the method for dealing with medical conditions and the problems they cause in the workplace should always be consistent.

If the employee is back in work, you should hold a return to work interview with them. This will enable you to explore the difficulties the employee may be facing to get a better idea of how you should manage the situation. You should ask the employee about the regularity of the symptoms and how the employee may be managing it.

If they are still absent from work, make contact with them to arrange a welfare meeting. A welfare meeting is an informal meeting to discuss the employee’s current situation, and to understand if there are any adjustments that can be made to the employee’s role that would allow for their return.

It is likely that a medical report will be necessary for a greater understanding of the employee’s current capabilities and to get a medical insight into the likely future of the problem. You will need the employee’s consent for this so it should be discussed at either the return to work interview or the welfare meeting.

You should then use the contents of the medical report to determine what your next actions will be. This report will likely give an opinion on whether the condition is to be classed as a disability and so may include recommendations for adjustments that can be made to the employee’s role in order to remove the barriers that the condition creates and you should look to make these where possible – you have a legal duty to make reasonable adjustments.

It is a myth that you cannot dismiss someone for a medical condition but you must have taken certain steps before you do.