It is a common issue facing employers; you want to start or take next steps with a grievance or disciplinary investigation. To do the right thing you want to meet with the employee to discuss your concerns but the worker is on sick leave or goes sick, often citing work-related stress.  Can you contact the employee while he/she is off sick?   There is an obvious answer – during that time the employee remains subject to his/her contractual duties, including compliance with your reasonable management instructions.  That should easily cover a request to discuss work-related concerns, surely?

Not so surely, actually, following the decision of the EAT in Private Medicine Intermediaries Limited v Hodkinson (UKEAT/0134/15/LA) as issued last month.

Miss Hodkinson took a period of sick leave for work-related depression and anxiety after complaining of bullying by her managers. PMI’s Chief Executive wrote to her to ask if she wanted to raise a formal grievance. Miss Hodkinson replied that she was in “no fit state to communicate without breaking down” and felt genuinely distraught about her treatment.

The CEO wrote again to Miss Hodkinson on 8 November 2013 confirming he had spoken to her manager to find out what had happened and that as a result he had six “areas of concern” he wanted to discuss with her. None of these were very serious and, it was subsequently discovered, most of them had already been dealt with.

Miss Hodkinson resigned, making specific reference to the November letter, “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”. She claimed that the November letter was a repudiatory breach of the implied term of mutual trust and confidence.

The ET recognised the genuine nature of PMI’s concerns, PMI’s right to raise these issues with an employee, and that PMI was not trying to elicit Miss Hodkinson’s resignation. The Tribunal concluded also that Ms Hodkinson was prone to over-sensitivity and exaggeration and that her illness was not actually the product of bullying or similar but of her own misperception of issues properly raised with her.  Regardless of its cause, however, it was common ground that she was very ill and that PMI knew it.

Based on that knowledge it decided that PMI should have reasonably known that the November letter would cause Miss Hodkinson distress and therefore that she was entitled to resign and claim constructive unfair dismissal.

But if everything that caused an employee distress was grounds for a constructive dismissal claim, how could the employer ever start a disciplinary process or refuse a promotion or reject a flexible working application? The constructive dismissal test requires the employer to act “without reasonable and proper cause” – in the examples above that would be a necessary part of managing the employment relationship and so that reasonable and proper cause test would be satisfied.  Here the CEO was found not to have that cause – he did not have to write at that time (while he knew she was so sick and likely to be badly affected by his letter), nor raise new performance concerns, nor include matters which were already resolved.

Lessons for employers 

1          There is a danger that employers may now feel they should make no contact at all with an employee during a sickness absence, particularly if that absence is due to work-related stress or if there is any chance that the contact will upset him/her. That is not what this case says.

2          As an issue of principle, keeping in contact with employees who are absent from work because of mental ill-health is an important part of a fair procedure in managing those absences (not to mention of potentially material psychological benefit to the employees).  Employers should still try to maintain contact during any period of sickness absence, unless clear medical evidence suggests this is inappropriate.

3          Correspondence about grievance or disciplinary proceedings obviously carries a reasonably high potential for distress, but if it is important and needs to be dealt with promptly, reasonable and proper cause will exist.  Remember the Guidance issued to OH functions by the Royal College of Physicians – that although attending such a meeting (or by implication writing or talking about it) may distress the employee, it is generally best for his health that he gets on with it and is not just allowed to sit and fester.

4          These principles apply only to those whose resilience to normal employer correspondence has been compromised by the nature of their sickness – so no worries here if your employee has a bad back, in other words.

5          If a serious matter comes to the attention of an employer while the employee is off sick, it is best practice to consider contacting the employee in an appropriate manner. To make things easier the employer could suggest other methods of contact rather than speaking directly, for example by letter, email, via the employee’s spouse or partner, or by meeting in a location other than the workplace.  It is always advisable to consider the urgency and seriousness of the matter to be raised and that employee’s individual circumstances before deciding what action to take.

6          Lack of intention to upset or get the employee to resign is immaterial.  Ms Hodkinson alleged that the CEO was deliberately pushing her out (over-sensitivity and exaggeration being a bit of an issue, as I say) – while that was flatly rejected by the Tribunal, the predictably adverse impact and lack of objective need for the 8 November letter in those terms at that time were enough combined without any need for any ill-intent behind it.

This post was written by Charlotte Nickel.