Constructive dismissal: raising written concerns with an employee on sick leave
In this case, the EAT found that an employee had been constructively unfairly dismissed when her employer raised written concerns with her while she was on sick leave, but that she had not suffered discrimination arising from a disability or harassment.
Miss Hodkinson, who is disabled, returned to work from a period of sick leave. Following advice from its OH adviser, her employer implemented several adjustments to her working conditions, including reduced hours. However, it decided not to follow two of the OH recommendations: it did not carry out a formal review following a GP review and weekly meetings were not held between Miss Hodkinson and her line manager. Her employer did not consider that such a formal approach was required in the circumstances.
Miss Hodkinson went off sick again, with work-related depression and anxiety. She believed that she had been bullied and intimidated by her line manager and the managing director. Following receipt of a fit note that referred to bullying, the CEO wrote to Miss Hodkinson asking whether she wished to raise a grievance and meet to discuss the issues. Miss Hodkinson wrote back advising that she was too upset and unwell to communicate properly without breaking down and was distraught by the treatment she had received since her last absence. Two weeks later the CEO wrote to Miss Hodkinson suggesting that they have a meeting before the end of the month, and advising that he had spoken to her line manager and the managing director to find out what had gone wrong. The letter also set out six areas of concern that he wanted to discuss with Miss Hodkinson.
Miss Hodkinson resigned due to a breakdown in trust and confidence, stating that she considered the timing and nature of the issues raised in the letter were intended to elicit her resignation. She subsequently brought claims for constructive unfair dismissal, discrimination arising from disability, harassment, and failure to make reasonable adjustments.
The tribunal held that the November letter amounted to an act of disability-related harassment and a breach of the implied term of mutual trust and confidence, entitling Miss Hodkinson to consider herself constructively unfairly dismissed.
The tribunal made findings of fact that:
- Miss Hodkinson had not been bullied or intimidated.
- She was not a credible witness and was prone to being over-sensitive and to exaggerate.
- The letter was not part of a campaign to drive Miss Hodkinson out, the concerns being genuinely held by her employer and had all been previously appropriately brought to her attention.
However, the tribunal held that her employer should reasonably have known that the letter would cause Miss Hodkinson distress and she was therefore entitled to treat it as a repudiatory breach.
The tribunal further found that the failure to implement the two OH recommendations amounted to unfavourable treatment and discrimination arising from disability. However, it dismissed Miss Hodkinson's claim for failure to make reasonable adjustments, finding that the employer had taken appropriate and reasonable steps on her return to work. The employer appealed.
The EAT upheld the tribunal's finding that Miss Hodkinson had been constructively dismissed. The November 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. However, the EAT dismissed the finding of disability related harassment and discrimination arising from a disability.
What does this mean for employers?
Employers should not feel that they cannot ever raise issues with employees who are absent on sick leave. They should however be extremely careful when doing so. Although Miss Hodkinson was over sensitive and had misperceived reasonable actions as bullying, the key to this case was the fact she was genuinely very ill, and her employer should have known that she was not in a fit state to deal with the issues raised in the letter two weeks later. She had also not been off sick for long, and the issues raised in the letter were not urgent – indeed some had already been closed off – and did not need to be raised while she was off sick. Employers who wish to raise issues when employees are off sick should consider the possible impact on the employee, given the nature of the illness, and whether the issues really do need to be dealt with urgently.