In Private Medicine Intermediaries Ltd v Hodkinson, the EAT considered whether an employee was constructively unfairly dismissed when her employer raised written concerns with her while on sick leave.

Facts

The claimant was employed by the company as Director of Sales for Managed Care and Occupational Health. It was accepted that the claimant was disabled for the purposes of the Equality Act 2010.

In October 2013, the claimant went off sick with depression and anxiety relating to alleged bullying and intimidation by her line manager and the managing director of the company.

The CEO of the company wrote to the claimant (whilst she was off sick) asking whether she wanted to meet to discuss the issues and whether she wished to raise a grievance. She replied saying she was too upset to do so. The CEO wrote to her again the following month to inform her that he had spoken to her line manager and the managing director about the allegations and he would like to arrange a meeting with her to discuss her concerns. He also raised some areas of concern with her work.

The claimant resigned a week later citing a breakdown in the relationship of trust and confidence. She brought Employment Tribunal claims for constructive unfair dismissal, discrimination arising from disability, harassment and failure to make reasonable adjustments. Tribunal rejected the reasonable adjustments and bullying complaints, but upheld all her other claims. The Tribunal agreed that the CEO’s second letter was capable of amounting to a fundamental breach of the implied term of mutual trust and confidence. The respondent should have reasonably known that sending the letter while the claimant was on sick leave which raised concerns that were not serious or urgent, would cause her distress. She was therefore entitled to resign and claim constructive unfair dismissal.

The Respondent appealed.

The EAT decision

The EAT upheld the finding that the claimant had been constructively dismissed and agreed that the second letter was a causative factor in her resignation. However the EAT overturned the Tribunal’s decision that the letter also amounted to disability-related harassment and discrimination arising from disability as there were no facts that connected the absence with her disability, or which showed that the letter had created a humiliating, offensive, or hostile environment for her.

Comment

This decision is a cautionary reminder to employers to think carefully before raising non-urgent concerns with an employee who is off sick, particularly where the illness in question is stress related. In this case the EAT took particular note of the fact that the CEO’s letter raised concerns that were “not serious” and “did not need to be dealt with at that stage”. Even where a more serious and pressing issue needs to be raised during a period of sickness absence, employers would be wise to be cautious about how they approach the issue with a sick employee, for example by checking with an occupational health physician about whether the employee is able to address any such issues and what is the best way of going about it.

Private Medicine Intermediaries Ltd and others v Hodkinson UKEAT/0134/15