Contact during sick leave: more or less?

By way of a reminder, in Private Medicine Intermediaries v Hodkinson, Ms Hodkinson was signed off work with depression and anxiety which she attributed to bullying and intimidation from her managers. PMI wrote to the Ms Hodkinson, offering to meet to discuss the issues. However, in the same letter, and notwithstanding that it was aware of the her serious health issues, it also raised several matters of concern relating to the Claimant's performance. The Tribunal found that the concerns raised in this letter regarding the Claimant's performance were not serious and did not need to be dealt with at that stage (indeed some had already been dealt with and were closed). The receipt of this letter caused the Claimant significant distress and in response she resigned and subsequently claimed constructive unfair dismissal (and disability discrimination).

The Claimant's constructive dismissal claim was successful and the Employment Tribunal accepted that the employer was in repudiatory breach of the implied term of mutual trust and confidence. In addition, her claim for disability-related harassment succeeded. At the EAT, the Tribunal's decision in relation to constructive dismissal was upheld: however, the decision on disability-related harassment was set aside. Interestingly, the Tribunal was not convinced by Ms Hodkinson as a credible witness, and found that she was prone to being over-sensitive and to exaggerate. It also acknowledged an employer's right to raise legitimate and genuine concerns. Notwithstanding these issues, the EAT confirmed that the ET was entitled to conclude that the letter had been a causative factor in Ms Hodkinson's resignation.

So where does this leave us - most employees receiving a letter touching on disciplinary/performance issues are likely to feel some level of distress, so how can employers reduce the risk of a claim for constructive dismissal?

• The key take home message from this case is that employers can still contact employees who are on sick leave, even if it is to discuss disciplinary issues which might cause distress. However, such contact must be reasonable and an employer should think hard about whether to delay disciplinary proceedings until such time as the employee has returned to work, or any grievance issues have been resolved. The Tribunal in this case were unimpressed with the timing of the employer's letter given that it knew Ms Hodkinson was very sick and the concerns were not deemed to be serious.
• Medical advice should be sought in relation to the employee's condition and in particular questions asked about contact and management of proceedings – this is particularly important when dealing with employees with mental health conditions.
• It is important that general contact is maintained with employees who are on sick leave, unless the medical advice suggests that this is inappropriate, to enable an employer to keep abreast of the employee's ongoing medical prognosis and to plan accordingly