Employment Case Law Update May 2016
Natalie Ruane highlights a recent EAT case to explain why employers should take care in their dealings with staff on sick leave.
Is raising written concerns with an employee on sick leave disability-related harassment?
In the case of Private Medicine Intermediaries Ltd and others v Hodkinson the Employment Appeal Tribunal (EAT) heard an appeal on whether the Claimant had been constructively unfairly dismissed and harassed when the employer had written to her whilst she was off sick. The EAT also had to decide whether this was discrimination arising from disability.
Whilst on sick leave in October 2013 with work related depression and anxiety, attributed by the Claimant to bullying, the employer wrote to her asking whether she wished to raise a grievance and offering to meet her to discuss her concerns. The Claimant wrote back stating that she was in no fit state to communicate without breaking down and that she felt distraught by the treatment she had received. After taking legal and HR advice the employer wrote again to the Claimant proposing to meet before the end of the month; they had carried out an investigation and raised six areas of concern with her work they wanted to discuss.
The Claimant then tendered her resignation due to a breakdown in trust and confidence and stated that the timing and nature of the issues raised and the six areas of concern were intended to elicit her resignation. She brought claims for harassment, discrimination arising from disability, failure to make reasonable adjustments and constructive unfair dismissal.
The EAT dismissed the ET's findings of discrimination arising from disability and harassment and upheld the appeal on these points. It could not say that the Claimant had suffered unfavourable treatment because of her disability. However, it agreed with the Tribunal’s findings that the company’s letter raised a number of concerns that were not serious and did not need to be dealt with at that stage given that it was apparent that the employee was not fit to respond to those matters, and that the letter was the reason that she had resigned.
A balance should be struck when keeping in touch with employees on sick leave. If there are outstanding concerns, consider if these can wait until the employee has recovered and returned to work.
The point to take away is that while the EAT was not convinced that the actions taken by the employer amounted to disability discrimination (i.e. not motivated by or arising as a result of the disability), it did find that the employee had been constructively dismissed: the nature of the employer’s correspondence was sufficiently damaging to amount to a fundamental breach of trust and confidence, justifying the employee’s resignation in response.
It is therefore important to balance the need to address an outstanding question or issue with the employee while they are off sick with the impact this might have on the employee in the circumstances. This should be judged on a case-by-case basis, with legal support for particularly complex situations.
For further information or advice on managing sickness absence, contact Natalie Ruane on 01228 552222 or email firstname.lastname@example.org
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.