Sick Leave Performance Review – management and discipline with an employee on sick leave article banner image

Sick leave performance review – 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 sickness absence?

 

This was the question the EAT had to grapple with in the recent case of Private Medicine Intermediaries v Hodkinson [2015].

 

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 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 suggesting that they have a meeting before the end of the month, and advising that 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 November letter were intended to elicit her resignation. She then brought claims for constructive unfair dismissal, discrimination arising from disability, harassment and failure to make reasonable adjustments.

 

EAT decision

The EAT found in her favour 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 a number of 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?

Employers should not feel that they cannot ever raise issues with employees who are absent on sick leave due to work related stress. They should however be extremely careful when doing so. Although the Tribunal found that Miss Hodkinson was over sensitive 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 raised by it in the letter two weeks later. She had also not been off sick for long, the issues raised in the letter were not urgent and did not need to be raised while she was off sick. Employers who wish to raise issues when employees are off sick should consider the possible impact on the employee, given the nature of the illness, and whether the issues really do need to be dealt with urgently.

 

The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call 01392 210700 or employment@stephens-scown.co.uk.