Off work with depression - what are my rights?

Being off work with depression can help you recuperate, get the help you need and some much-needed time away to gather your thoughts. For some people, especially those signed off work with depression, anxiety or stress, they can feel guilty about this. The reason for this could be due to the fact  mental illness has few visible signs, and therefore feels like the time off for a mental health condition isn’t for a valid reason or may not be accepted by their organisation.

We’re here to remind you that non-physical conditions are just as valid. You may be wondering what your rights are if you’re off work with depression, what the process is, what organisations must do to support you and how long you can be off work with depression.

Is depression a disability in the UK?

Yes, it can be under certain circumstances. If your depression is severe enough for your doctor to sign you off sick, it’s a disability under the Equality Act 2010. This is true if the depression you’re experiencing, or any mental health condition, has a long-term (12 months) effect. Remember, the act states that:

“A person (P) has a disability if-

P has a physical or mental impairment

The impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

If I’m off work with depression, can I go out?

Being signed off with a mental condition isn’t quite the same as being signed off with a physical impairment. There’s a lot of fear of being ‘caught out’ when signed off sick—you may worry that people think of you as lying about your condition if they see you out and about. There’s a stigma, and it can be hard to ignore.

But depression is an illness which can be made easier by going outside, enjoying the sun, and catching up with people. You’re not expected to sit in a dark room thinking about the end of the world—in fact, it’s recommended to get back to nature to lift your mood.

You may be worried about bumping into people from work, and what they might think. Let them know that you hope to be back soon. You’ve been given some time off to heal; members of senior leadership and HR will respect that.

Disability and the law

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.

• Promotion.

• Dismissal.

• Redundancy.

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 the workplace, or more time if you need it. You have a right to each of these, use your rights, and get well soon.

I’m an employer – how can I support someone with depression?

It’s important to create an environment that encourages openness. Just because you can’t see anything ‘physically’ wrong, doesn’t mean you can dismiss their concerns. A culture of openness can facilitate psychological safety, as well as an environment where your people may be more likely to open up about issues they may be facing.

If one of your people has made you aware they are struggling with depression, you need to make them aware of who they can speak to in order to get the help they need. This could be your Mental Health First Aider (MHFA), or even simply encouraging them to seek professional mental health support through their GP.

It’s at your discretion if you encourage your people to take time off work. This can be the most suitable option if it’s evidently clear an individual is struggling at work. If this is the route you go down, once they are off work, it’ll be your duty to check-in regularly to ensure their wellbeing. Be sure not to pressure them to come back to work. If the subject comes up naturally, or an individual expresses interest in coming back to work sooner than when their fit note expires, then this is the time to come up with a plan to phase their return to work as best as possible. It may be that you implement reasonable adjustments at their request (such as flexible working or a reduced workload whilst they settle back in).

How long can I be off work with depression?

You can be signed off work with depression for as long as you need to get better. This could be days to weeks or months. Usually, you’d return to work once the fit note runs out, but if you feel better, you can return to work earlier than planned.

Organisations aren’t obligated to provide their people with paid sick leave on top of statutory sick pay, even if the absence is disability related.

However, if you’re unable to work and there aren’t any reasonable adjustments that can be made, there may be grounds to dismissal. Organisations and senior leadership may consider this as a last resort, and they’ll need to prove that you explored all options for reasonable adjustments to help you stay in your role.

Should I take time off work for depression?

Taking time off can be a great step towards recovery, particularly if it’s affecting your ability to work to the best of your ability. Time off for depression can help you reduce stress, prioritise your mental health, and return to work in a healthier state than you previously were.

To answer this question, you must remember it’s completely down to you and your individual needs and tolerances. There may be adjustments that can be made at work before you feel the need to get a fit note, so it’s worth discussing with your line manager or leadership what can be done.

My doctor won't give me a sick note for depression – what should I do?

Doctors can refuse to issue a fit note if they believe you are fit for work. You can try speaking with a different doctor who may be able to offer a different opinion or use Employee Assistance Programme to speak to a counsellor to see what options they can provide for you. ACAS is also another avenue you can go down to seek advice on how employers should navigate accommodating your mental health and/or depression.

Can I be sacked for being off sick with depression?

You cannot be sacked for being off sick with depression. In some cases, depression may be considered a disability, meaning you can gain certain protections that would render the employer unlawful and discriminatory, if they were to dismiss you.

Organisations can however dismiss you if you’re off long-term and it prevents you from performing your job. However, this is often a last resort and can only be actioned once all other avenues have been exhausted.

Conclusion

Knowing your rights when you’re off work with depression is key to navigating what to do next. You needn’t do this alone. Your organisation has a legal duty of care to provide support. After all, running on empty is good for no one, so in order to support your recovery, if time off is what you need, getting the information you need can help you facilitate and focus purely on your recovery.