Posting a letter into the post box

Can an employee claim they have been treated so badly that they can claim constructive unfair dismissal when their employer writes to them when they are on sick leave?

When an employee is on sick leave, particularly due to mental ill health, assessing what the right level of communication is can be difficult. As an ethical HR professional or manager, you will want to look after your employee’s wellbeing while also ensuring organisational needs are met. That balance of care and accountability becomes especially difficult where a manager raises performance concerns.

The decision of the Employment Appeal Tribunal (EAT) in Private Medicine Intermediaries v Hodkinson gives some insight into how an employment tribunal might approach the question of what considerations there might be around contacting employees on sick leave.

What were the facts?

Miss Hodkinson, who is disabled, returned to work from a period of sickness absence. Following advice from its OH adviser, her employer implemented several adjustments to her working conditions, including reduced hours. However, it decided not to follow some of the OH recommendations such as carrying out a formal review following a GP review and holding weekly meetings between Miss Hodkinson and her line manager. Her employer wished to avoid such a formal approach.

Miss Hodkinson went off sick again, with work-related depression and anxiety, and claimed that she had been bullied and intimidated by her line manager and the managing director. Following receipt of a fit note that referred to bullying, the CEO wrote to Miss Hodkinson asking whether she wished to raise a grievance and meet to discuss the issues. Miss Hodkinson wrote back advising that she was too upset and unwell to communicate properly without breaking down and was distraught by the treatment she had received since her last absence. Two weeks later the CEO wrote to Miss Hodkinson again suggesting that they have a meeting before the end of the month, making her aware that in the meantime he had spoken to her line manager and the managing director to find out what had gone wrong. The letter also set out six areas of concern that he wanted to discuss with Miss Hodkinson.

Miss Hodkinson resigned due to a breakdown in trust and confidence. The crux of her claim was that the timing and nature of the issues raised in the letter were intended to elicit her resignation. She was successful in her claims for constructive unfair dismissal, discrimination arising from disability and harassment.

Employment Appeal Tribunal decision

An appeal followed, with the EAT agreeing with the tribunal that the November letter amounted to a breach of the implied term of mutual trust and confidence, entitling Miss Hodkinson to consider herself constructively unfairly dismissed.

It held that her employer should have known that the letter would cause Miss Hodkinson distress and she was therefore entitled to treat it as a repudiatory breach.

The November letter was written to an employee who was known to be very ill and raised several concerns that were not serious and did not need to be dealt with at that stage. Indeed, some of the issues raised had already been dealt with and were closed.

What does this mean for employers?

Navigating situations where employees are on stress leave due to work-related issues requires a delicate balance. While maintaining open communication is crucial, ethical considerations demand sensitivity and careful judgment. Here are some tips on how to approach these situations from an ethical HR perspective:

1. Consider impact on employee wellbeing

Employers should not feel that they cannot ever raise issues with employees who are absent on sick leave due to work related stress. Similarly, the comments of the Tribunal should not in any way be taken as suggesting that an employer should not remain in contact with an absent employee. However, consider the impact of your communications on the employee’s well-being. Avoid raising sensitive performance or disciplinary concerns while they’re actively struggling with stress. The immediate focus should be on their recovery and return to health.

2. Communicate with respect

You can and should maintain open communication with an absent employee but do so within respectful boundaries. Agree with the absent employee what level and type of contact they are comfortable with, considering their mental health.

3. Assess urgency and sensitivity

When it comes to raising performance or other concerns, should take care. Although the Tribunal found that Miss Hodkinson was oversensitive and had misinterpreted reasonable management action as bullying, the key fact was that she was genuinely very ill, and her employer should have known that she was not in a fit state to deal with the work-related issues at that time.

Evaluate the urgency of the issues you want to raise. Can they wait until the employee returns in a better state to handle them? If not, consider alternative solutions or temporary adjustments to address immediate concerns.

4. Avoid triggering or pressuring

Miss Hodkinson had not been off sick for long, the issues raised in the letter were not urgent and did not need to be raised at that point in time. Whilst performance or disciplinary concerns should generally be dealt with without delay, it remains a question of reasonableness and faced with an absent employee and concerns which are not time-sensitive, it will often be sensible for an employer to defer taking formal action.

Where concerns are raised, be mindful of the potential impact your communication might have on the employee’s stress levels. Avoid accusatory language, harsh criticism or creating undue pressure to respond immediately.

5. Document and seek guidance

Keep detailed records of your communications and decisions to maintain transparency and protect yourself from potential legal issues. When in doubt, seek professional guidance to ensure you’re following ethical and legal best practices.

6. Create a supportive environment

Building trust and demonstrating empathy are key to fostering a supportive and understanding work environment. Look at how you can navigate challenging situations while upholding your legal obligations and the needs of your organisation as well as creating a culture where employees feel safe and valued.

Is there anything else we should have in mind regarding sick leave?

Remember to offer access to any employee assistance programs or mental health resources you have in place which may support the employee’s recovery.

When it comes to discussing a return to work, consider implementing flexible work arrangements or temporary workload adjustments upon their return to ease their transition back into work. Maintaining that culture of open communication and stress management within the organisation will help you to prevent similar situations arising in the future.

By approaching situations with an ethical HR lens, you can create a supportive workplace that looks after employee wellbeing while still ensuring fair and responsible management practices.

Situations like this involve conflicting interests and it is all too easy for an employer to take a misstep in navigating their way through them. Our experienced team is on hand to give you guidance for how best to manage challenging situations like this and the steps you should take to ensure you meet your legal obligations, whilst also having the needs of your organisation in mind.