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When an employer’s contact with employee during sick leave risks constructive dismissal

Posted by TonyBrownEmploymentSolicitor on April 13, 2016

Can an employer contact an employee on sick leave without risking a claim for constructive dismissal?

Maintaining appropriate contact with an employee on sick leave can be difficult for an employer. For every employee who feels harassed by their employer calling them to find out when they are going to return to work, there will be another who complains that they feel abandoned by an employer who never gets in touch.

In the next case, the EAT had to decide whether an employee was constructively unfairly dismissed when her employer wrote to her while she was on sick leave for work-related stress to raise concerns it had with her.  

The Claimant in that case went off sick with work-related depression and anxiety.  Following receipt of a fit note that referred to bullying, the employer wrote to the Claimant asking whether she wished to raise a grievance and to meet to discuss the issues. The Claimant wrote back saying that she was too upset and unwell to communicate properly and was distraught by the treatment she had received.  

The employer took legal advice and spoke to HR before writing again to the Claimant suggesting that they should have a meeting to discuss what had gone wrong. The letter continued, however, to say that there were six areas of concern that the employer wanted to discuss with the Claimant.  

As the ET found, the employer did not consider any of the concerns to be serious, and that some of the issues had previously been raised and were by then closed. 

 The Claimant responded giving notice of resignation due to a breakdown in trust and confidence, referencing the letter she had received, observing: 

“Notwithstanding my absence due to anxiety and depression, and the issues that I have raised, you make six further allegations relating to my performance and commitment, the timing and nature of which can only be intended by you to elicit my resignation.”

The Claimant brought a claim in the ET for constructive unfair dismissal.

 The ET reached the following conclusions:

  • The Claimant had not been bullied or intimidated at work.
  • She was not a credible witness and was prone to being over-sensitive and to exaggerate.
  • The letter she complained about was not part of a campaign to drive the Claimant out, the concerns being genuinely held by the employer and had all been previously appropriately brought to her attention.

 However, despite these findings, the tribunal decided that, in writing to the Claimant while she was on sick leave for work-related stress, to raise concerns regarding her employment that were not serious or urgent, the employer was in breach of the implied term of mutual trust and confidence, entitling the Claimant to consider herself constructively unfairly dismissed.  

The EAT upheld the tribunal's finding that the Claimant had been constructively dismissed by the letter. That 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.

 While the tribunal had not lost sight of its earlier findings on the genuine nature of the employer’s concerns, its right to raise those issues with the Claimant and the Claimant’s misperception of the situation, the tribunal had been entitled to conclude that the letter had been a causative factor in the Claimant’s resignation.

Comment

Taken at face value, this ruling suggests that an employer risks a successful claim for constructive dismissal if it raises employment concerns with an employee who is absent for work-related stress.

Perhaps the deciding factor in this case was that the concerns were not serious or urgent and some had already been dealt with. Even so, it is still difficult to reconcile the tribunal's findings that the concerns were genuinely held by the employer and the Claimant was over-sensitive and prone to misinterpret her employer's actions, with the finding of constructive dismissal.

 Disclaimer

This article is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This article is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.