Wed 06 Apr 2016

Contacting an employee while on sick leave amounted to a fundamental breach of contract

The Employment Appeal Tribunal has upheld a constructive claim in circumstances where the employer contacted the employee while the employee was on sick leave

In Private Medicine Intermediaries Ltd and others v Hodkinson the Employment Appeal Tribunal (the "EAT") upheld a tribunal's finding that Ms Hodkinson had been constructively dismissed after her employer contacted her while she was on sick leave.

Ms Hodkinson suffered from a thyroid dysfunction and cardiac arrhythmia and was absent from work for a period of time due to these conditions. After she returned, her employer made some adjustments to support her in her return to work. However, Ms Hodkinson then went on sick leave again, this time with work related stress. Ms Hodkinson believed that following her return from her earlier sick leave she had been bulled by both her line manager and the employer's managing director. Her employer received a fit note from her GP which referred to bullying and as a result, her employer contacted her and asked if she wished to raise a grievance. Ms Hodkinson's reply was that she was unable at the time to cope with raising a grievance. Subsequently, her employer wrote to her again suggesting a meeting take place and outlining certain issues which the employer wished to speak to Ms Hodkinson about. Ms Hodkinson then resigned and raised claims of constructive unfair dismissal, discrimination arising from disability, harassment, and failure to make reasonable adjustments.

In the Employment Tribunal, Ms Hodkinson was successful in all of her claims aside from the claim for a failure to make reasonable adjustments. Her employer appealed and successfully overturned the Tribunal's decision in relation to discrimination arising from disability and harassment. However, the claim for constructive dismissal was upheld.

In order to be successful in such a claim, an employee needs to show that a material term of their contract has been breached by their employer and they have resigned, without unreasonable delay, in response to that breach. If an employee shows that the mutual term of trust and confidence has been breached, this will, almost certainly, amount to a material breach of the employment contract. It was this term which Ms Hodkinson claimed had been breached by her employer when they sent the last letter to her while she was on sick leave. In upholding this aspect of Ms Hodkinson's claim, the EAT referred to the Tribunal's findings that her employer knew that she was very ill and that the issues raised in the letter were not significant and some were in fact not outstanding. As such, the EAT decided that the Tribunal had been entitled to reach the conclusion that this letter materially contributed to her resignation.

The EAT reached this decision despite the fact that the Tribunal had also found that Ms Hodkinson's employer was genuinely concerned about the issues raised in the letter and were not trying to force her to resign. The Tribunal also found that Ms Hodkinson tended towards being over-sensitive. Therefore, this decision highlights the caution which employers must show when contacting employees on sick leave, particularly those who are off due to workplace stress.

It is important to bear in mind though that this case is not saying that employees cannot be contacted and in fact, it is usually good absence management practice for an employer to keep in touch with an employee on sick leave. However, careful thought should be given to the nature and timing of the contact and whether it is appropriate, taking into account the reason for the employee's absence.

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