Q&A: How should employers deal with performance concerns when an employee is absent with work-related stress?
Employers often ask us how they should deal with performance issues with an employee who is absent due to work-related stress. Employers may be concerned that attempts to contact employees on sickness absence will cause further distress, but equally they don’t want to be accused of failing to deal with important matters.
The recent Employment Appeal Tribunal (EAT) case of Private Medicine Intermediaries Ltd and others v Hodkinson (2016) concerned an employee whose employer failed to implement some of the reasonable adjustments that had been recommended by occupational health on her return to work following a period of disability related absence. The employee then went off sick again, this time due to work-related depression and anxiety, and she alleged that she had been bullied by her line manager and by his manager. The Chief Executive wrote to her asking if she would like to raise a grievance and offering a meeting to discuss her concerns, however she declined on the basis that she was in no fit state to communicate.
The Chief Executive wrote again to the employee, suggesting a meeting (with flexibility as to its location) and explaining that he had spoken to those she accused of bullying to ascertain what had happened. The letter, however, also raised 6 areas of concern about the employee which the Chief Executive wanted to discuss with her.
The employee resigned in response to the letter and brought claims in the Employment Tribunal for:
- constructive dismissal based on a breakdown in trust and confidence;
- discrimination arising from disability;
- harassment; and
- failure to make reasonable adjustments.
The ET held that the employee had not been bullied (it did not find her to be a credible witness). However, it held that the letter raising the concerns amounted to an act of harassment related to disability and that she had been constructively dismissed. The employer’s failure to implement the occupational health recommendations was found to amount to discrimination arising from disability, but not a failure to make reasonable adjustments.
The employer appealed to the EAT. On appeal, it was held that the Tribunal was entitled (on its finding of the facts i.e. that the concerns raised in the letter were not serious and didn’t need to be dealt with at that stage, bearing in mind that the employee was very ill) to find that the employee had been constructively dismissed. It did not matter that it was not the Chief Executive’s intention to elicit her resignation, as he should reasonably have known that the letter would cause her distress and he acted without reasonable and proper cause. The EAT did however overturn the Tribunal’s finding that the employee had been harassed and that she had suffered discrimination arising from disability. The EAT found that the employer’s failure to implement the occupational health recommendations was because of its belief in the adequacy of an informal approach, not because of something arising in consequence of the employee’s disability, and that the illness that she was suffering from at the time of receiving the letter was not related to her disability.
What should employers take away from this case?
The important thing to remember in this case is that the issues raised in the letter were not serious and the employer could have waited to raise them with the employee, in fact some of the issues had previously been dealt with and closed. It is not the case that employers can never raise serious issues with employees who are off sick with work-related depression, or that they cannot keep in contact with them, but some careful thought as to when and how to communicate with the employee could go a long way.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).