Contacting employees while on sick leave
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Can employers make contact with employees on sick leave? This question was addressed by the EAT in Private Medicine Intermediaries Ltd and others v Hodkinson, which ruled that in certain circumstances contact may amount to a repudiatory breach of contract and constructive dismissal. The following case is a good reminder to employers to think about the best way to make contact, and whether it is strictly necessary.
In Private Medicine Intermediaries Ltd and others v Hodkinson, the Claimant took a second period of sick leave (having returned to work on reduced hours and with reasonable adjustments) as a result of work-related depression and anxiety which she claimed had been caused by the bullying and intimidation of her line manager and the Company’s Managing Director. During her sick leave, the Company’s CEO wrote to the Claimant offering a meeting to discuss her concerns and asking whether she wished to raise a grievance, but also raising six areas of concern he wanted to discuss with the Claimant. In response to this letter, the Claimant resigned due to a breakdown of trust and confidence, and brought claims for constructive unfair dismissal, discrimination, harassment and failure to make reasonable adjustments.
Contact resulted in constructive dismissal
In the first instance, the Tribunal found in favour of the Claimant for disability-related harassment and constructive unfair dismissal. On appeal, the EAT set aside disability-related discrimination and harassment, but upheld the Tribunal’s finding of constructive unfair dismissal. Crucially, the Tribunal and the EAT relied on the CEO’s evidence to find that although the concerns raised may have been genuine, in the context of writing to a very sensitive and unwell employee, they “were not serious” (the CEO conceded that some had even already been considered closed) and they “did not need to be dealt with at that stage”. The communication with the Claimant while on sick leave was therefore considered a causative factor in the Claimant’s resignation and she was entitled to treat it as a repudiatory breach of contract.
Lessons for employers
What does this mean for employers? In reality, not much has changed: employers should ‘stay in touch’ with employees on sick leave but be sensitive. Consider the context, and whether it is really necessary to deal with the matters while the employee is in a vulnerable situation, particularly where this might have been caused by the employer.
What is the nature of the employee’s sickness?
- Keep up-to-date OH reports
- Treat work-related stress and depression with greater sensitivity
How serious are the allegations or concerns to be raised with the employee?
- Are they linked to the employee’s sick leave?
- Can they wait to be raised on the employee’s return to work?
- Conduct issues may need to be dealt with more quickly, but can performance issues wait?
- If you do raise concerns, be selective: only include those which really need to be addressed at that stage.
The fact that the EAT did not consider this contact to be discriminatory (which would have lifted the limit on the compensation award) was fortunate for the employer, but this could so easily have gone the other way. And it is also worth remembering that if the employee’s mental health is affected seriously, the employee may also have a personal injury claim.