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Raising concerns with an employee on sick leave

The Employment Appeal Tribunal (EAT) has found that an employee was constructively unfairly dismissed when her employer wrote to her with non-urgent concerns while she was on sick leave for work-related reasons (Private Medicine Intermediaries Ltd v Hodkinson).

Background

Miss Hodkinson was on sick leave with work-related depression and anxiety. She believed that she was subjected to bullying and intimidation by her line manager and the managing director of the company.

Following receipt of a fit note that made reference to bullying, the CEO wrote to Miss Hodkinson asking whether she wanted to raise a grievance. Miss Hodkinson replied stating that she was too unwell to communicate properly and was distraught by the treatment she had received from the employer.

Two weeks after receiving this response from Miss Hodkinson, the CEO wrote again to her again, setting out six areas of concern relating to her performance that he wanted to discuss.

Miss Hodkinson claimed that the CEO’s letter could only have been sent to elicit her resignation and she subsequently resigned due to a breakdown in trust and confidence. She argued that her employer’s actions amounted to a repudiatory breach entitling her to resign and brought a claim for constructive unfair dismissal, along with others.

Decision

The EAT upheld the Tribunal’s decision that Miss Hodkinson had been constructively dismissed. Whilst it was not found that the letter was intended to drive Miss Hodkinson from the business, the employer should reasonably have known that the letter would cause Miss Hodkinson distress such that she couldn’t return and she was therefore entitled to treat it as a repudiatory breach.

Summary

Employers should be extremely careful when raising conduct or performance issues with employees who are on sick leave particularly if the absence is work related. In this case, the letter was written to an employee who was known to be very ill and raised a number of concerns that were neither serious nor urgent.

Employers who wish to raise issues when employees are off sick should carefully consider the possible impact on the employee and whether they really need to be dealt with while the employee is absent.

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