Can an employer raise performance concerns whilst an employee is on sick leave?
This question was considered in the case of Private Medicine Intermediaries Ltd and Others v Hodkinson EAT 134/15.
Miss Hodkinson suffers from a number of ailments including thyroid dysfunction and cardiac arrhythmia. It is accepted that she is disabled within the meaning of the Equality Act 2010.
When Miss Hodkinson returned from a period of sick leave on or around September 2013, her employer, Private Medicine Intermediaries Ltd (PMI), implemented several adjustments to accommodate her disability including reduced hours. PMI decided not to carry out a formal review and weekly meetings as it felt that these were not necessary.
Miss Hodgkinson went off sick with work-related depression and anxiety in October 2013. She raised concerns regarding bullying and intimidation.
PMI wrote to Miss Hodkinson whilst she was off sick, inviting her to a meeting to discuss her concerns. In the same letter it set out six areas of concerns that PMI wanted to discuss with her.
Miss Hodgkinson resigned due to a breakdown in trust and confidence in light of the concerns raised whilst she was off sick.
The Employment Appeal Tribunal (EAT) upheld the Tribunal’s finding that Miss Hodgkinson had been constructively dismissed.
The EAT had been influenced by the fact that the letter was written to an employee who was known to be very ill, and raised a number of concerns that were not serious and did not need to be dealt with at that stage. Indeed, some of the issues raised had already been dealt with and were closed.
This case reiterates the common concern for employers contacting employees who are off sick. If there are genuine concerns then employers, in light of this case, need to tread carefully as to when the concerns should be raised. In this case the deciding factor was the concerns were not serious or urgent and some had already been dealt with. This should not stop employers from communicating with employees regarding their absence and facilitating the return to work. Each case should however be considered on a case by case basis.
If you have any questions, please contact:
T. 020 7227 7410
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.