Cautionary tale for contacting employees during sickness absence

Employers often ask to what extent they can communicate with employees during a period of sickness absence, for example, to address ongoing disciplinary and grievance issues. A recent case has highlighted that caution should be exercised as the EAT has upheld an employee's constructive dismissal claim as a result of being contacted by her employer to address specific areas of concern.

Facts

It was accepted that Miss Hodkinson, the Claimant, suffered from a disability due to her thyroid dysfunction and cardiac arrhythmia. Following a period of sick leave the Claimant returned to work in September 2013 and her employer implemented several adjustments to her working conditions recommended by Occupational Health. However, it did not implement two recommendations, namely: a formal review following a GP assessment, and weekly meetings. The Claimant had a further period of sickness absence in October 2013 caused by anxiety and work-related depression. Her fit note also made reference to bullying by her line manager and the managing director. The CEO subsequently wrote to her asking whether she wanted to raise a grievance and meet to discuss the issues, but she wrote back saying that she felt too upset and unwell to do so.

Having taken legal advice and spoken to HR, the CEO contacted the Claimant in early November 2013 suggesting a meeting before the end of the month (at a flexible location). However, the letter also went on to set out six areas of concern that the Respondent wanted to discuss with the Claimant. Upon receipt of this letter, the Claimant resigned stating she considered the timing and nature of issues raised were intended to elicit her resignation.

She brought claims of constructive unfair dismissal, discrimination arising from disability, harassment and failure to make reasonable adjustments.

The tribunal found that she had not been bullied and that she was not a credible witness as she was over-sensitive and exaggerated issues. It also found that the letter was not part of a campaign to intimidate her as the issues had already been raised with her. However, the tribunal found that the employer should have known that the letter would have caused the Claimant distress. Consequently it held that the letter amounted to an act of disability-related harassment and entitled the Claimant to consider that she had been constructively unfairly dismissed. The failure to implement two of the OH recommendations was also discrimination arising from disability, although it did not consider there had been a failure to make reasonable adjustments.

EAT decision

The EAT allowed the employer's appeal to find that there had been no disability discrimination or harassment. However, it upheld the finding that Miss Hodkinson had been constructively dismissed. In particular, the EAT was influenced by the fact that the issues raised by the Respondent in its letter to the Claimant were not serious, did not need to be dealt with at that stage (in the knowledge the employee was very ill), and in some cases, had already been raised and dealt with previously and were no longer an ongoing concern. The EAT also held that the Tribunal were entitled to conclude that the letter had been an integral factor in the Claimant's resignation.

Does this mean that employers cannot contact employees on sick leave?

No. There are many situations where employers need to communicate with employees during sickness absence. For example, where an employee is on long term sick leave it may be necessary to contact them due to a consultation exercise affecting all staff or to update the individual on developments or changes in the business. There is also evidence to suggest that employees benefit from not having issues hanging over them for long periods and that failing to communicate with employees during absence can create barriers to returning to work and make the individual feel isolated, out of touch and undervalued. There are no hard and fast rules, but employers need to use tact and common sense if someone is off sick and exercise caution before contacting an individual and consider the following:

• Why do you need to contact the employee and what is the content of the communication?
• Is the employee's illness one that could be aggravated by making contact (e.g. conditions such as stress, depression and anxiety, particularly work related, should be managed more cautiously than someone who is off with, for example, a broken leg). Is the proposed communication of a nature that is likely to cause the employee distress and/ or potentially aggravate their condition?
• Is it necessary to communicate the issues with the employee at that time? Is it urgent or can it wait for their return? Where there is no return date envisaged it may not be possible to wait but if the individual is scheduled to return in the near future and the communication could cause distress for a vulnerable employee and is not time critical then employers should consider whether it is appropriate to hold back.
• Has the employee been initiating communication or been open to communication during their absence? In the current case the employee had expressly provided that she was too unwell to bring a grievance and discuss issues that she had raised.
• Be mindful of potential victimisation claims if the employee can argue that performance issues are being raised because they have blown the whistle or alleged discrimination, for example, in a grievance.
• Employers should communicate with an employee in a manner that indicates that they want to assist the employee in their return to work whilst being sensitive and ensuring that the employee is not feeling pressurised to come back to work before they have fully recovered.
• If contact is necessary and could cause issues for a vulnerable employee, employers should proceed cautiously and look to deal with any grievance and any potential performance or disciplinary issues separately. Also, in some cases, it may be appropriate to consider obtaining an OH report on the employee's ability to address such matters whilst they are on sick leave.
• The employee should be given options around where meetings are held and the timings of meetings including, where appropriate, waiting for the employee to return to work (unless this is not foreseeable or reasonable). 

For more information, contact the employment team at Foot Anstey

(Private Medicine Intermediaries Ltd and others v Hodkinson 2016)