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Case update (2): Sickness absence – Beware insensitive contact

disability discriminationSummary: Can raising non-urgent concerns with an employee on sick leave with work-related stress amount to a breach of the implied term of trust and confidence and lead to the employee’s constructive dismissal?

Yes, says the EAT in Private Medicine Intermediaries Ltd v Hodkinson available here.

Facts:  Miss Hodkinson, the employee, was absent from work due to work-related depression and anxiety. She alleged workplace bullying and intimidation by her line manager and the Managing Director.  Miss Hodkinson and her doctor had both told her employer that she was feeling extremely vulnerable as a result of the bullying, to the extent that she did not feel able to raise a grievance.

However, the Chief Executive wrote to the employee about the bullying complaints.  He confirmed that he had spoken to the line manager and Managing Director about the background and, as a result, there were “six areas of concern” about her performance and commitment that he wanted to discuss with her.  In response, Miss Hodkinson resigned, claiming a breakdown in trust and confidence and alleging that the timing and nature of the concerns raised “can only be intended by you to elicit my resignation”.

Miss Hodkinson brought, amongst others, a Tribunal claim for constructive unfair dismissal. The Tribunal found that the Chief Executive’s letter was not part of a campaign to drive Miss Hodkinson out but reflected genuine concerns held by the employer. It also concluded that Miss Hodkinson was prone to over-sensitivity and exaggeration and that her depression was not caused by bullying or intimidation as she claimed but due to an erroneous perception of how she was being treated. However, nonetheless, the Tribunal decided that the Chief Executive knew, or ought reasonably to have known, that the letter was likely to cause Miss Hodkinson to be so upset that she could not return to work and therefore her constructive dismissal claim succeeded.

The employer appealed.

The EAT upheld the decision that Miss Hodkinson had been constructively dismissed. The letter was sent at a time when the employer knew that Miss Hodkinson was very ill and not fit to deal with it. Moreover, the constructive dismissal test requires the employer to act “without reasonable and proper cause” and the Tribunal’s conclusion that the raising of concerns that were not serious and did not need to be dealt with at that stage, in the context of writing to a very ill employee, undermined any reasonable and proper cause.

Implications:   How and when to communicate with employees who are on sick leave is often a tricky HR issue, particularly when dealing with workplace stress. There is consistent advice from ACAS, the Government’s Fit for Work Service and Mind that employees should be encouraged to keep in touch regularly when on sick leave and should agree with their employers the frequency of contact and how contact should be made.  However, employers do need to continue to bear in mind the impact of their actions on the absent employee’s health, particularly in mental health or stress related absences.

Although this case should not be read as prohibiting employers from raising concerns with a vulnerable absent employee, it does demonstrate the perils of taking a robust, rather than sensitive, approach. Employers should carefully consider the seriousness and urgency of the matters to be raised and also take into account the employee’s particular circumstances before deciding what, if any, steps to take and the manner and timing of any communications.  Overall, employers would be best advised to raise only those issues which are essential and cannot await the employee’s return.

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