Raising concerns with an employee on sick leave

Louise Walker
Legal Director
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The Employment Appeal Tribunal (EAT) has decided that an employer who attempted to address workplace difficulties with an employee on sick leave constructively dismissed that employee.

The employee was disabled and had a history of sickness absence. In October 2013 the employee went off sick again due to depression and anxiety, claiming that two senior employees of the company had bullied and harassed her.

The company’s CEO wrote to the employee in November 2013, while she was still off sick, stating that he had spoken to the senior employees and outlining six areas of concern that he wished to discuss. A week later, the employee resigned and claimed that the employer had fundamentally breached her employment contract by sending the CEO’s letter.

The Employment Tribunal agreed with the employee and their decision was upheld on appeal. The EAT found that the employer knew that the employee was very ill and that while the letter was a genuine attempt to resolve the employee’s concerns, the issues did not have to be addressed urgently.

This case highlights the difficulty of communicating with an employee who is off sick with work-related anxiety, stress or depression. Employers must be careful to balance the need to address work-related issues with the potential effect on a sick employee of communications that they may be unable to cope with at that time. Before sending letters to absent employees, highlighting performance and/or conduct concerns, employers would be well advised to make sure the matter merits the degree of urgency it is being accorded.

As well as creating a risk of a claim of constructive unfair dismissal, employers sending such letters may also increase the likelihood of discrimination claims, particularly if the employee is disabled and the disability is linked to the issues being addressed while they are off sick.

Just Employment Law can provide detailed guidance and advice to employers on assessing the correct approach to a particular case.

You can read the judgment here:

http://www.bailii.org/uk/cases/UKEAT/2016/0134_15_1501.html

Topics: EAT, Employment Appeal Tribunal