Our Commercial Team have recently published some insight into the effects of The Mental Health (Discrimination) Act 2013 and how it affects companies and the termination of company directorships. In short, it is not straightforward. Similar issues can be found in the employment arena and we have previously posted about what protections are offered to employees with disabilities.

Just like directors cannot be removed automatically by reason of ‘incapacity’ neither can employees who are more junior to that. This will apply to both directors and employees generally but please bear in mind that this is solely from the employment perspective and terminating an office appointment will require a separate process under the Companies Act 2006 on which our commercial team can advise.

It is important to note that even if a company has concerns with regards to a person’s mental health or even their physical health, it is not for the company to determine whether they are fit to continue work or not and so medical advice on that must be sought from a qualified professional.

So, let’s take a scenario where an employee with disabilities struggles with their mental health and has therefore been absent from work for a while on long-term sick leave. It is understandable that the company wishes to know whether the employee can return to work, when they might be able to return to work and what changes they may need to implement in order to accommodate the employee’s return to work. This is where the sickness absence policy will be most appropriate:

  1. Invite the employee to attend a meeting where the company can check in with the employee. This does not need to be overly formal format, but the employee should have advance notice of the meeting and who will attend and you may need to accommodate a remote meeting, for example, if the employee is not yet able to attend the office. The meeting will usually be with the line manager at least and usually it is appropriate to have an HR person present, if the company has a HR function;
  2. At the meeting, the employee should have an opportunity to discuss how they have been feeling, what helps they may have sought or feel they could benefit from and whether they think that the company could help them with any of that at all. This should be within reason, of course, but it is worth considering what efforts the company can offer;
  3. After the meeting, the company should consider whether there is benefit in having a medical report regarding the employee. This might be appropriate to have a note from the employee’s GP or, more often than not, a referral to occupational health (Please note that many companies shy away from Occupational Health because they are not large enough to have a direct contact, but there are companies that can accept referrals for Occupational Health on an ad-hoc basis and that is appropriate in the circumstances). The purpose of this referral will be to obtain medical advice to supplement the information from #2 above and guide the company in their next steps;
  4. Once information has been obtained on if, when and how the employee might be able to return to work, the company should look to implement those changes that have been recommended where it is possible. For physical disabilities and ailments this may be more obvious, but adjustments for mental health purposes could include more flexible working in terms of hours being work, how many breaks can be taken, the frequency of the breaks or even a hybrid working with some remote working to assist the re-adjustment to the workplace; and
  5. If the medical advice is inconclusive about the employee being able to return or when that might happen, the company can consider whether it is possible that the employee’s employment simply cannot continue and could proceed with a process of terminating employee’s employment on the grounds of capability (which is one of the fair reasons under Section 98 of the Employment Rights Act 1996). This process will require some more meetings and discussions with the employee and must be handled fairly, but also delicately with a careful balance of the business needs vs the employee’s mental, physical or emotional needs.

The important thing to note is that employment can be terminated when an employee’s health is affected in the long-term to such extent when they are not able to perform their role properly or at all. This is not a decision that should be taken lightly at all and, in the first instance, the company should consider how they might be able to support the employee back into work (paragraph 3 above) but where that has been concluded to be improbable or impossible then other avenues can be considered.

We appreciate that this is a grey area and one that should be considered carefully.