Dismissal due to mental illness

02 September 2021

Whether it’s depression, anxiety, stress, or something else, mental illness can put serious strain on workers.

If the condition begins to impact an employee’s performance. You might want to consider what you can do about it.

In this article, we’ll explain the process of dismissal due to mental illness, the potential risks, and the steps you can take to try and resolve the issues before reaching that stage.

Can you dismiss an employee with mental health problems?

In short, yes. Your employee’s mental health should be treated the same as physical health.

The Employment Right Act 1996 lists the fair reasons for dismissal. One of those is capability (medical or performance-related), under which a dismissal due to mental illness is likely to fall.

When considering dismissing an employee with mental health problems, it’s essential that a fair and reasonable process is followed.

Dismissal process for mental illness

A fair process requires a thorough investigation into the impact of the mental illness on the individual’s ability to perform their work. This may be their ability to meet targets, interact with customers and colleagues, or perhaps absence levels.

You must also explore any reasonable adjustments that can be made to assist them, by meeting with the employee several times to discuss the situation. Reasonable adjustments can include:

  • Providing additional equipment.
  • Amending duties.
  • Adjusting the sickness policy to accommodate a greater number of absences.

What’s reasonable should be assessed on the resources available to an organisation. Getting up-to-date medical information at this stage would be beneficial, so that any decisions are based on the most up to date information available.

You may need to make adjustments that the business has not had to do before. Funding for these may be available from local charities, to ease any financial burden.

Only once reasonable adjustments have been fully exhausted, but performance is still not to the required standard, can an employee be fired for mental health.

A meeting should be held if you’ve followed a proper capability procedure and no improvement has been made. Both parties should confirm there are no other options, only dismissal, and confirm termination with notice.

Unfair dismissal for mental illness

It can take time to go through the process of managing capability. And not following the proper process can result in unfair dismissal claims and costly fees.

These claims can be costly, as discrimination claims are not subject to an upper limit like other employment claims. There is also the risk of significant reputational damage, especially if the employer is trying to portray an inclusive image.

Should the employee bring an employment tribunal claim, you’ll be best protected by showing that you’ve acted reasonably. Reasonability is subject to their size and resources.

Your process must be robust. It must give you and the employee time to process what’s happening, for the measures to take effect, and for improvements to be seen.

Expert support on capability issues with Peninsula

There’s a lot to keep in mind when terminating an employee with mental health issues in the uk.

It’s so important to get it right, due to the significant risk of disability discrimination, and unfair dismissal if a fair and reasonable process hasn’t been followed.

Let Peninsula support you with unlimited HR advice, available over phone 24/7. Our expert advisors can assist with the next step to take, and provide air-tight policy documents for your business.

Not a client yet? You can still enjoy a free advice call from one of our team. Simply call us on 0800 028 2420.

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