In Private Medicine Intermediaries Ltd (“PMI”) -v- Hodkinson 2016, the EAT has upheld an employment tribunal decision that contacting an employee to raise non-urgent concerns whilst they were off sick with depression amounted to a repudiatory breach of contract, entitling the employee to resign and claim constructive dismissal.

Ms Hodkinson was employed by PMI as a Director of Sales until her resignation in November 2013. It was accepted that she was disabled within the meaning of the Equality Act 2010 by reason of a thyroid dysfunction and cardiac arrhythmia.

In October 2013, Ms Hodkinson went off sick with depression and anxiety relating to alleged bullying and intimidation by her line manager and the MD. The CEO wrote to her asking whether she wished to raise a grievance and offering a meeting to address her concerns. She replied that she was in no fit state to communicate without breaking down and felt genuinely distraught about the treatment she had received.

The CEO wrote again to Ms Hodkinson on 8 November 2013 confirming that he had spoken to the line manager and MD about the background and, as a result, there were “six areas of concern” that he wanted to discuss with her. In response, Ms Hodkinson resigned, claiming a breakdown in trust and confidence and alleging that the timing and nature of the concerns raised “can only be intended by you to elicit my resignation”.

Ms Hodkinson brought claims in the employment tribunal for, inter alia, constructive unfair dismissal and disability-related harassment.

The tribunal found that the November letter was not part of a campaign to drive Ms Hodkinson out but reflected genuine concerns held by PMI. It also concluded that Ms Hodkinson was prone to over-sensitivity and exaggeration and that her depression was not caused by bullying or intimidation as she claimed but due to an erroneous perception of how she was being treated. However, it decided that the CEO knew or ought reasonably to have known that the letter was likely to cause Ms Hodkinson to be so upset that she could not return to work and therefore her constructive dismissal claim succeeded.

On appeal, the EAT upheld the finding that Ms Hodkinson had been constructively dismissed and agreed that the November letter was causative of her resignation. The constructive dismissal test requires the employer to act “without reasonable and proper cause” and the tribunal’s conclusion that the raising of concerns that were not serious and did not need to be dealt with at that stage, in the context of writing to a very ill employee, undermined any reasonable and proper cause.

However, the EAT overturned the tribunal’s additional finding that the letter also amount to disability-related harassment as, whilst the tribunal had found that the November letter “related to” her depression, it made no finding that such illness was related to her disability (thyroid dysfunction and cardiac arrhythmia). On the contrary, it found that the depression was related to Ms Hodkinson’s misperception of work-related issues properly raised with her and her erroneous feelings that she was being bullied and intimidated.

Maintaining contact with an employee who is off sick, particularly where there are work-related issues, allegations of bullying and a diagnosis of depression is fraught at the best of times. However, this case is an instructive reminder that employers should carefully consider the seriousness and urgency of the matters to be raised and also take into account the employee’s particular circumstances and disposition before deciding what, if any, steps to take and the manner and timing of any communications.