By writing to an employee while she was on sick leave for work-related stress, raising concerns with her employment that were neither serious nor urgent, an employer acted in repudiatory breach of the implied term of mutual trust and confidence, and the employee had been constructively dismissed.
However, a claim for disability-related harassment did not succeed. The tribunal had not established facts to show that the conduct related to the employee's disability, or that it had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
The claimant was absent from work for a period of time due to conditions that constituted a disability. After she returned to work, her employer made adjustments to support her in her return to work. However, the claimant was absent again with work-related stress. She claimed that following her return from her first period of sick leave she was bullied by both her line manager and the managing director. Her employer received a fit note from her GP which referred to bullying and thus the employer contacted her and asked if she wished to raise a grievance. The claimant indicated that she was unable to cope with raising a grievance at that time. Her employer wrote to her again suggesting a meeting take place, and outlining issues about which the employer wished to speak to the claimant about. The claimant resigned and claimed constructive unfair dismissal, discrimination arising from disability, harassment, and failure to make reasonable adjustments.
The claimant was successful at first instance in all but the reasonable adjustments claim. The employer appealed and the Employment Appeal Tribunal (EAT) overturned the finding of disability-related harassment. The Employment Tribunal (ET) had failed to show that the conduct related to the employee's disability, or that it had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
However the constructive unfair dismissal claim was upheld. Mutual trust and confidence was undermined when the employer raised issues that were not significant, and in some cases were not live matters with the claimant whilst she was off sick with work-related stress.
This case should not be read so as to discourage employers from staying in contact with sick employees. Communication with absent staff is the cornerstone of good absence management. However where employers wish to contact sick employees about other matters, employers should ask themselves if they are sufficiently pressing to justify the contact. They should also take care with the tone, content and timing of any correspondence.