Employment Review: Can raising written concerns with an employee on sick leave amount to constructive unfair dismissal

Background

This case concerns a constructive unfair dismissal claim by an employee who resigned because her employer had raised written concerns with her during her sickness absence.

Before we go on to consider the facts of this case, let us remind ourselves of the test for establishing a successful constructive dismissal claim:

Constructive Dismissal

For an employee’s resignation to amount to a constructive dismissal there must be:

• A significant/repudiatory breach of contract by the employer, and
• The employee must leave in response to that breach without delay (so as not to be deemed to have waived the breach).

In this case, the breach of contract relied on was a breach of the implied term to maintain trust and confidence – i.e. whether the employer had acted in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.

Facts

The Claimant was employed with the Respondent as a Director of Sales. The Claimant was a disabled person and had a period of absence from work due to that condition in the summer of 2013 – she then returned to work on reduced hours.

The Claimant had a second period of absence in October 2013; but this was due to work related depression and anxiety because of bullying and intimidation by her 2 colleagues, Mr Green and Mr Munro. On 24 October 2013, the Chief Executive, Mr Baldwin, wrote to the Claimant asking if she wished to raise a grievance and offering a meeting to discuss her concerns.

The Claimant responded that she was in no fit state to communicate without breaking down; she felt genuinely distraught about the treatment she had received since her last absence and felt devastated and unable to sleep, concentrate or function properly.

Mr Baldwin took HR and legal advice before replying to the Claimant on 8 November 2013. He insisted on a meeting before the end of that month to discuss her concerns and said he had also spoken to Mr Green and Mr Munro to get the background. The letter continued, however, to say that there were six areas of concern in relation to her performance and commitment to the business that Mr Baldwin wanted to discuss with the Claimant.

The Claimant subsequently resigned due to a breakdown in trust and confidence, referencing the 8 November letter, and stating that she thought “…the timing and nature of the performance concerns raised in that letter was intended to elicit her resignation…”

The Claimant brought (amongst others) a claim for constructive unfair dismissal for breach of the implied term of mutual trust and confidence as a result of Mr Baldwin’s letter of 8 November.

Decision

The ET and subsequently the EAT found that the Claimant had been unfairly constructively dismissed, for the following reasons:

• Mr Baldwin knew or ought reasonably to have known the letter of 8 November was likely to cause the Claimant to become upset such that she could not return to work, but was prepared to take that risk.

• Mr Baldwin’s letter raised a number of concerns that were not serious and did not need to be dealt with at that stage (not urgent) (some of which Mr Munro felt had been dealt with and were closed),

• Mr Baldwin wrote to a very ill employee who was not fit to deal with those matters.

• The Claimant’s resignation had been caused by Mr Baldwin’s letter of 8 November, which she was entitled to treat as a repudiatory/significant breach of contract.

Comments

Employers will usually need to make contact with an employee on sick leave to understand their medical condition, to support the employee’s return to work, and to understand whether reasonable adjustments are necessary.

It is often a difficult balance to strike between the employer’s need to maintain contact and the employee’s need to recover from illness.

So how should employers deal with employees who they need to performance manage, or who have raised a grievance but are on sick leave?

The safest option is to acknowledge receipt of any grievance and suggest that it is dealt with on the employee’s return to work, unless they feel well enough to properly engage in the process whilst on sick leave. Any performance issues should be raised and dealt with on the employees return to work.

Employers should tread very carefully if they wish to deal with such issues during sick leave periods, and will need to be able to justify and show clear evidence that the issues in question are sufficiently serious or urgent to warrant taking action during a period of sick leave.

Private Medicine Intermediaries Ltd & Others v Hodkinson UKEAT/0134/15, 15 January 2016.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.