The statistics are frightening. With more and more openness around mental health issues employers need to start paying attention to how to best support employees suffering from depression and other mental health issues. 

In a recent WRC case (A Sales Representative v A Wholesaler DEC-E2016-131) the employer was severely criticised for dismissing an employee under the guise of performance and disciplinary issues after they had returned to work having being diagnosed as suffering from depression. 

The employee in this case was dismissed following a Skype disciplinary hearing of which he had no notice. The employee was still in a probationary period and so the employer was probably of the view that the normal level of dismissal procedure was not required. However the employee had recently returned from work after being diagnosed with depression and was on prescribed anti-depressants. His personnel manager insisted that he tell the company exactly what medication he was taking. The company did not send the employee for any medical assessment before or following his return to work. The employee was ultimately dismissed shortly after his return to work for performance and disciplinary issues. The employee then took a claim for discriminatory dismissal. 

 Several issues were considered by the Workplace Relations Commission (WRC) in coming to its decision. These included:

- the procedure and manner in which the dismissal had occurred - I suggest a Skype call without notice is not a sufficient disciplinary process in any situation

- dismissal for incapacity - despite the employer never having mentioned the employee's depression as a factor in his dismissal the WRC was of the view that this was in fact the real reason

- reasonable accommodation - the employer had failed to inform itself or even consider what reasonable accommodation should or could have been put in place to assist the employee in carrying out their role in light of their disability

Ultimately the WRC found that the employee has been dismissed based on discriminatory grounds and awarded him 6 months pay which amounted to €18,000. 

There are several take-aways for employers from this case:

1. Depression is a disability and so the impact of the Employment Equality Acts must be considered. While an employer is not obliged to maintain an employee in employment where they are not capable of fulfilling the role they were hired to do, they must take in account the obligation to provide that employee with reasonable accommodation. This means they must consider whether there is some arrangement or support that can be provided to the employee in assisting them in being fully capable in carrying out the role. This exercise needs to include the most up to date medical advice and consultation with the employee. It is only if reasonable accommodation is not possible that a capability dismissal should be considered.

2. Even if an employee is on probation they are still entitled to fair procedures if being disciplined or dismissed. It is important that there is a genuine paper trail kept of the dismissal process. This is particularly the case where the employee has a disability as a claim under the Employment Equality Acts is possible. An employee does not need to have a minimum level of service to take this type of claim. 

3. Employers should be very careful not be make presumptions or allow unconscious bias to factor into any decisions when dealing with employees suffering from depression. Decisions about the employee should only be made with a full medical opinion and after consultation with the employee. Employers should consider engaging specialist medical advisors when dealing with mental health issues and assessing an employee's ability to carry out their role. 

If you need advice in managing an employee absence situation please contact a member of our Employment Law Team:

http://leman.ie/the-4-departments/employment/

Disclaimer:This article is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.