Springhouse Solicitors

Making contact with employee on sick leave: discrimination, harassment and constructive dismissal?

The EAT has recently considered a case where an employee claimed she had been discriminated against, harassed, and constructively dismissed because she was contacted while on sick leave due to work related stress. How did they decide?

Background

The Claimant in this case, Miss Hodkinson, had been employed in a senior position. She suffers from a two-fold disability; thyroid dysfunction and cardiac arrhythmia. She had had some time off sick with these conditions, and an occupational health report had been produced. The employer did not carry out two of the occupational health recommendations, however, believing that such a formal approach was not necessary.

Subsequently, Miss Hodkinson went off on sick leave, this time for work related depression and anxiety. At this point she complained about her line manager, saying that she had been bullied and intimidated by him. She was invited to raise a grievance. She said that she was too unwell to do this.

Miss Hodkinson’s employer subsequently wrote to her, whilst she was absent on sick leave, suggesting a meeting.

Miss Hodkinson resigned, and made the above-mentioned claims.

In relation to the claim for constructive unfair dismissal, this claim was upheld by the EAT, which was concerned that the issues that had been raised with Miss Hodkinson were not serious or urgent, and that the employee had known very well how ill she was at the time they were raised.

In respect of the claim for discrimination, the EAT did not find that Miss Hodkinson’s disability had been the cause for the failure to carry out the two occupational health recommendations. The reason had not been the disability, but, rather, had been their belief that such a formal approach did not need to be taken.

Turning to the claim for harassment, the EAT found that the Claimant’s disability, that is her heart and thyroid conditions, had not been the reason for the employer’s letter writing. This was related to her stress and anxiety which were not disabilities. The claim for harassment was therefore not upheld.

Implications

The minor nature and lack of urgency of the allegations against Miss Hodkinson were relevant in this case. However, it does provide a stark warning that employees need to be dealt with very carefully when they are absent on sick leave.

It is notable that Miss Hodkinson was found by the Tribunal not to be a credible witness, and prone to being over-sensitive and to exaggeration. The employer had taken legal advice, and their concerns were found to be genuinely held. This is therefore an especially tough case for employers.