In this article, we answer a question that concerns many: “Can I be sacked for being off sick with depression?” We discuss what are an employee’s legal rights and obligations, and what exactly are one’s option when facing the decision to share or not their mental health status.
Can I be sacked for being off sick with depression?
You cannot be sacked, dismissed, fired or criticized in any way for being off sick with depression. The Equality Act of 2010 classes depression as a disability. This means that depression is protected under the equality act. Employers can’t discriminate against us when we apply for jobs, when we’re at work, or if we lose our job, including losing it through redundancy, based on our depression. Employers must also make reasonable adjustments when we are at work.
Be sure to assert your employee rights with depression. If you’re signed off sick due to depression, you enjoy protection against discrimination in:
- Recruitment and selection.
- Pay, terms, and conditions.
- Sickness absence.
- Training and development.
So, don’t spend the time you’ve been given worrying about your job.
Use it to get better—in exactly the same way you’d concentrate on recovering from a physical illness. Ask for reasonable adjustments, a phased return to work, or more time if you need it. You have a right to each of these—use your rights, and get well soon.
Should you declare that you have depression?
When we apply for jobs we will always have to decide whether or not to declare our depression, and if we do decide to declare it, whether to tell our prospective employer at the application stage, or once we’ve been offered the job.
Disclosing means that we are protected under the Equality Act, it can allow us to have extra support at work, apply for reasonable adjustments, and potentially get support from our colleagues.
However, we could also, unfortunately, be judged by our colleagues or boss. Legally, we are not obligated to disclose our depression; it is our choice to tell our employer if we have a mental health condition.
If you do decide to tell your employer, think about:
- How and when to do it. It can be helpful to have a note from your doctor to help explain your situation.
- How much information you want to give. You don’t have to go into personal details, just focus on how your mental health problem impacts on your job.
- Who to share it with. For example, the human resources (HR) department may know your diagnosis, but they don’t have to tell your supervisor or colleagues.
Access to work scheme
If the help you need at work is not covered by your employer making reasonable adjustments, you may be able to get help from Access to Work.
You’ll be offered support based on your needs, which may include a grant to help cover the costs of practical support in the workplace.
An Access to Work grant can pay for:
- special equipment, adaptations or support worker services to help you do things like answer the phone or go to meetings
- help getting to and from work
You might not get a grant if you already get certain benefits.
The money does not have to be paid back and will not affect your other benefits.
Occupational health service
Your employer can refer you to occupational health if you have a mental health problem that is affecting your work or causing you to take time off sick, particularly if this is more than 2 or 3 weeks at once.
Occupational health referrals will help your employer understand what adjustments need to be made to support you at work.
Occupational health services may also make an assessment of your ability to do your job. If you disagree with this it is important to get specialist legal advice. There is also a government-funded occupational health service called Fit for Work. Fit for Work offers free, expert and impartial work-related health advice to employers, employees, and GPs.
Adjustments that you can ask your employer to make
If your mental health problem is a disability and there is a feature of your work which is causing you major disadvantage because of this disability, then your employer is under a duty to make adjustments to avoid that disadvantage.
Examples of adjustments you could ask for include:
- changes to your working area
- changes to your working hours
- spending time working from home
- being allowed to take time off work for treatment, assessment or rehabilitation
- temporarily re-allocating tasks you find stressful and difficult
- getting some mentoring.
The adjustments have to ones that are reasonable for your employer to make. Whether a change is reasonable or not depends on the circumstances of each case, but may include:
- if the change deals with the disadvantage
- how practicable it is to make the change
- your employer’s size and financial and other resources
- what financial or other assistance may be available to make the change.
It can be useful to discuss with your GP or another health or social care professional who knows about your mental health problem what changes to your workplace could help you at work. You should also get a letter to back up any request you want to make.
Employers can sometimes get financial help with making reasonable adjustments, including the cost of transport from the government’s Access to Work service. This also offers a workplace mental health support service for employees and prospective employees with mental health problems.
Payment while you are off work
Sometimes depression may reach a level where you have to take time off work as sick leave. The amount of time we continue to get paid at your full wage will vary from job to job, depending on your employer’s policy and how long you have been in the job.
Some jobs will continue to give you full pay for a number of weeks and then reduce it to half pay. Once you are no longer receiving payments from your employer, and you have been off work for more than four days, you can receive Statutory Sick Pay (SSP) for up to 28 weeks.
Statutory Sick Pay (SSP)
To qualify for Statutory Sick Pay (SSP) you must:
- be classed as an employee and have done some work for your employer
- have been ill for at least 4 days in a row (including non-working days)
- earn an average of at least £118 per week
- tell your employer you’re sick before their deadline – or within 7 days if they do not have one
You will not qualify if you:
- have received the maximum amount of SSP (28 weeks)
- are getting Statutory Maternity Pay
You can still qualify if you started your job recently and you have not received 8 weeks’ pay yet. Ask your employer to find out more.
You only have to give your employer a fit note if you’re off sick for more than 7 days in a row (including non-working days).
You can get a fit note from your GP or hospital doctor. If your employer agrees, a similar document can be provided by a physiotherapist, podiatrist or occupational therapist instead. This is called an Allied Health Professional (AHP) Health and Work Report.
The weekly rate for Statutory Sick Pay (SSP) is £94.25 for up to 28 weeks. It is paid:
- for the days an employee normally works – called ‘qualifying days’
- in the same way as wages, for example on the normal payday, deducting tax and National insurance
SSP stops when the employee comes back to work or no longer qualifies. If you’re not eligible or your SSP ends
You may be able to apply for Universal Credit or Employment and Support Allowance (ESA).
If you need further assistance negotiating your rights at work, there are organizations that can help. Benefits and Work have excellent resources and an active members forum where you can ask questions. Citizens Advice can also be extremely helpful: they have lots of information on their website or you can contact your local bureau for personal advice.
In this article, we answer a question that concerns many: “Can I be sacked for being off sick with depression?”
As you found out, you cannot be dismissed because of taking time off to deal with depression. Legally, you are under the protection of the Equality Act of 2010, which classes depression as a disability.
Please feel free to comment on the content or ask any questions in the comments section below.
FAQ about Can I be sacked for being off sick with depression
Can I be sacked for being off sick with stress?
You cannot be sacked for being off sick with stress. If you are experiencing significant stress at work, your general practitioner can sign your off work.
Can you be sacked for mental health?
Legally you cannot be sacked for mental health, however, it is possible lawfully to terminate the employment of an employee who has a mental illness. This isn’t so easy tho, as there are steps that need to be taken, by an employer before deciding to terminate the employment of an employee in these circumstances.
Will a doctor sign you off for stress?
A doctor can sing you off for stress if you are suffering from a significant level of stress.
Do I have to tell an employer about mental illness?
You are not required to tell your employer about your mental health condition unless there’s a risk to yourself or others.
What mental illness keeps you from working?
A mental illness that keeps you from working is a disorder that causes you to be unable to adapt to social or work situations and that the condition has caused long term problems.
Can you get fired for anxiety?
You cannot get fired for anxiety. The fear of getting sacked is often part of the catastrophizing mechanism that is a hallmark of workplace anxiety.
1.Employment Law: The Essentials
2. Reasons to Stay Alive
3. Employment Law 2020 (CLP Legal Practice Guides)
4. Overcoming Depression – Get Happy Again: The Self-Help Workbook for Understanding Depression, Anxiety and Panic Attacks
5. Try Happy Habits: How to have new happy and healthy habits to control depression anger, anxiety and overcome stress to live with energy
6. The Self Confidence Workbooks: 2 Books in 1: How to Deal with Depression and Anxiety + Cognitive Behavioral Therapy workbook