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26 May 2016

Communicate with care when employee on stress-related sick leave

Employers should tread cautiously when raising potential performance issues with an employee on sick leave with work-related stress. In Private Medicine Intermediaries Ltd & Others v Hodkinson the EAT considered whether an employer was in repudiatory breach of contract when the CEO wrote to an employee who was off on long-term sick leave about concerns that were not serious or urgent.

Ms Hodkinson was disabled for the purposes of the Equality Act 2010 and had been absent on long-term sick leave but returned to work on reduced hours. After her return she alleged she had been bullied by her line manager and went off sick again with work-related depression and anxiety. The CEO wrote to her asking if she wished to raise a formal grievance about the bullying allegations and whether she wanted to meet to discuss the issues. She said she felt too unwell to communicate properly, but despite this he wrote again suggesting they have a meeting and also set out 6 areas of “concern” relating to her performance that he wanted to discuss with her. She resigned in response to the letter and brought claims for constructive unfair dismissal, discrimination arising from disability, harassment and failure to make reasonable adjustments.

The Tribunal found that she had not been bullied or intimidated and that she was prone to be over sensitive and to exaggeration. Her disability discrimination claims were not ultimately successful. However, both the Tribunal and EAT held it was clear that someone in Ms Hodkinson’s position would be distressed by receiving a letter setting out concerns that were neither serious, or urgent and some of which had already been dealt with. Her constructive dismissal claim therefore succeeded.

Our practical points

  • It is often difficult for an employer to gauge what level of contact is appropriate with an employee who is on sick leave with stress and anxiety. While there is a need to keep communication channels open employers should ensure any such communications are handled sensitively and are limited to what is reasonable and necessary in the circumstances
  • Employers should avoid raising minor issues with an employee which may well cause distress and would also be well-advised to keep performance issues separate from any grievance which has been raised. However, if there are issues of gross misconduct an employer will not want to delay unreasonably in dealing with this, and should seek advice on the best approach.

This article was written by Emma Bartlett.