Have you looked into the Access to Work mental health support service - https://www.remploy.co.uk/employers/mental-health-and-wellbeing/workplace-mental-health-support-service-employers/#:~:text=This%20confidential%20service%20delivered%20by,health%20issues%20affecting%20their%20work.

It might be worth trying (if you haven't already) as it provides quite intensive support

Em

Aside from Emily's advice, you  do not have to continue this for ever.

The fact that they wish to continue working is no good reason on its own to keep them working.

I asume you've kept some kind of record of the lengths you've gone to support them and so on?

You mention OHP.  Unless it was within the last few months and nothing has changed, I'd send them to OHP again, making it very clear to who ever provides this service that you've bent over backwards taking their advice into consideration and that you've now reached the point to which you cannot continue offering employment, but wish to check with them whether there is anything that has changed etc., .

In reply to David Perry:

Hi Lau and Welcome!

Great advice from colleagues as above.

Sounds as if a potentially fair capability dismissal might be possible here, irrespective of the almost-certain Equality Act protection involved too.

But you’d need to follow fair process, usually involving staged formal capability hearings at which there’s right to a companion; full consideration of up to date OH guidance etc.

It’s ultimately a balance between business needs and humanitarian concerns: assuming this employee is functioning at least somewhat towards business needs, perhaps Access to Work might be able to help make up the shortfall? If not, then you may face a potentially most distressing task in implementing that fair process - of course as humanely as you possibly can.

The occasions I’ve personally had to be involved in cases such as this are still painful etchings on my memory, even many decades later. For what it’s worth, looking back on what happened etc in these cases perhaps illustrates that people do have a tendency to adapt and survive following such events, sometimes in novel and unexpected ways, so even though catastrophic for them in the short term, longer term they may not turn out quite so badly - indeed, sometimes positively for them.

I really wish you well in sorting it out.

Of course, if you follow a proper process taking into account reasonable adjustments, OH advice and specialist input, you can dismiss this person.

I mean, technically, you can dismiss them without all of this stuff but we wouldn't recommend it!

If you assume that, regardless of what steps you take, you'll end up in some form of equalities dispute, the question that really needs to be asked and answered first is "why now?"

This person's issues have been ongoing for at least six years and possibly as many as twelve, yet they have continued to be employed. Is it that the business never had the will or professional support to confidently dismiss them? Is it that they had the personal support of a senior leader who has since left the business or stepped back from regular involvement? Is it that, despite their many issues, they are actually making a meaningful and constructive contribution to the business?

Asking these questions is essential to understanding both how to proceed and how to resolve any disputes that might arise. Assuming yours is a commercial enterprise rather than a charity or public institution, you aren't obliged to carry unproductive employees, whatever their personal challenges. But by the same measure, you *are* obliged to accommodate the needs of productive employees, even if those needs are greater than those of the average employee. By your own account you have been taking good steps to help this individual to be productive, so a judgement needs to be made as to how effective those steps have been and whether there is anything else you could or should be doing to enable them to make a positive contribution to the business.

Bear in mind that the academic evidence is good that a neurodiverse business is stronger and more effective than an exclusively neurotypical business. So even if this employee's contribution is only of borderline value, his very existence in the business might be providing you with a degree of efficiency or service improvement that makes it worth retaining him. If nothing else, he is giving your MHFAs valuable hands-on experience that will make them better equipped to help other members of staff with MH struggles.

I started this answer talking about process, so I'll end there too: the process of absence management isn't just to create a "safe" pathway to dismiss an employee with higher-than-acceptable absence. It is also supposed to prompt consideration within the business as to whether dismissal is, actually, in the best interests of the business. If so, then set to! But if not, it shouldn't be out of a vague sense of social obligation that this person is retained, but with a clear-eyed understanding of the value he is adding.