Raising concerns with an employee on sick leave

In Private Medicine Intermediaries Ltd v Hodkinson the EAT considered whether writing to an employee while she was on sick leave for work-related stress, to raise concerns regarding her employment, amounted to constructive dismissal and/or disability related harassment.

In this case the EAT upheld the tribunal’s decision that where the concerns were not serious or urgent, the employer was in repudiatory breach of the implied term of mutual trust and confidence, and the employee had been constructively dismissed.

However, the EAT did not agree with the tribunal’s decision that the letter amounted to an act of disability-related harassment. 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.

Employers should take great care in their communications with employees who are on sick leave, especially if their condition could be exacerbated by any issues or performance concerns raised. There will be cases where an employer cannot wait and needs to raise issues with an employee before their return, but you should proceed with caution and take advice before doing so to avoid the risk of a claim.

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