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10th April 2016

Take care when communicating with off sick employees

Communicating with sick employees is crucial in managing their absence and any return to work, but it is an area fraught with difficulties, as demonstrated by the recent case of Private Medicine Intermediaries Ltd and others v Hodkinson.

Miss Hodkinson was employed as a director of sales and PMI accepted she suffered from a disability due to her thyroid dysfunction and cardiac arrhythmia.

Miss Hodkinson returned to work in September 2013 following a period of sick leave and PMI implemented several adjustments to Miss Hodkinson's working conditions in accordance with Occupational Health recommendations.

In October 2013, Miss Hodkinson had a further period of absence caused by work-related depression and anxiety, and her fit note made specific reference to bullying. PMI therefore wrote to Miss Hodkinson asking whether she wished to raise a grievance and meet to discuss but she wrote back saying that she felt too upset and unwell to do so.

PMI replied in early November 2013 suggesting a meeting before the end of the month. However, the letter went on to set out six areas of concern that the company wanted to discuss with Miss Hodkinson. Upon receipt of this letter, Miss Hodkinson resigned.

The Employment Appeal Tribunal upheld the Tribunal’s finding that PMI had breached the implied term of mutual trust and confidence by writing to Miss Hodkinson raising concerns which were not serious or urgent with her while she was on sick leave for work-related stress. Thus, when Miss Hodkinson resigned in response to that letter, she had in fact been constructively and unfairly dismissed.

It is hard to reconcile the Tribunal’s finding of constructive unfair dismissal with its findings that no bullying had occurred, that Miss Hodkinson was not a credible witness and was prone to being over-sensitive and exaggerating, and that the concerns raised in the November letter were genuinely held by PMI and indeed had all been previously raised. However, it seems that the Tribunal considered the timing of raising those non-urgent concerns with an employee, who was known by the employer to be very poorly, was a factor which triggered her resignation.

This case highlights the clear need for employers to think carefully about the communication they have with an employee who is off sick. In the event of a claim, it will be important for an employer to be able to demonstrate that reasonable steps were taken to keep in touch with the employee on sick leave and to keep up-to-date with the cause of that absence.

However, an employer needs to be mindful that any correspondence is likely to be disclosable. Any letters should therefore be carefully written in a non-judgmental and factual way and deal only with the issues at hand. If telephone calls are made or meetings are held, contemporaneous notes should be taken and the outcome followed up in a letter as soon as possible.

Any grievances raised should be dealt with in accordance with company policy and any issues which need to be urgently dealt with under a disciplinary or capability procedure should be managed with caution having taken legal advice.

Katy Parkinson, Employment Solicitor, Napthens LLP – QCS Expert Employment Law Contributor

Topics: Human Resources

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