Risks of contacting employees on sick leave with mental health problems

Following a recent legal decision, employers may need to revisit policies on contacting employees on sick leave, particularly if they have a mental health problem. Solicitor Rory Lynch explains.

A recent Employment Appeal Tribunal (EAT) decision highlights the care that must be taken by HR managers and business owners when contacting employees on long-term sick leave.

In the case of Private Medicine Intermediaries Ltd and Others v Hodkinson, the EAT held that an employee was constructively dismissed because of the content of a letter she received from her employer while she was on sick leave.

The case serves as a warning that employers could face a claim for a fundamental breach of contract if care is not taken to ensure that the contact made is reasonable and for a proper cause.

The facts

The claimant, Miss Hodkinson, was an employee of Private Medicine Intermediaries (PMI). In October 2013, she was signed off on sick leave due to work-related depression and anxiety as a result of alleged intimidation and bullying by her manager and another director of PMI.

Good-practice tip

The employer needs to set out how it will communicate to employees about absence triggers and targets, and their use and inclusion within a wider absence policy. The use of absence triggers and targets should be an open and transparent process and promoted as part of an overall absence management or wellbeing strategy.

Absence triggers and targets should be seen by staff as a proactive way of improving the health and wellbeing of employees and reducing unnecessary sickness from work, rather than a way of putting pressure on employees to come to work when they are genuinely ill. Employers should also stress to employees that the measures will be applied consistently across the organisation.

The employer should clearly lay out how absence is going to be measured, how triggers are reached and what the absence target is.

If employees understand that the measurement weights short-term absenteeism, they will realise that taking the odd day off on a regular basis will quickly multiply their score, possibly triggering a review. This may have the effect of deterring them from taking sick days when they are not genuinely ill.

Source: XpertHR

While on sick leave, the chief executive of PMI sent two separate letters to Miss Hodkinson. While no complaint was made regarding the first letter, Miss Hodkinson responded to say that she was in “no fit state to communicate without breaking down”.

A month later, the CEO sent a second letter, despite being aware of the employee’s health conditions. In this letter he proposed a meeting outlining six areas of concern relating to Miss Hodkinson’s work performance – none of the areas of concern were of an urgent nature and it was found later that most of them had been dealt with previously.

The employee then resigned and raised claims for constructive and unfair dismis­sal, discrimination arising from disability, harassment, and failure to implement reasonable adjustments.

While the employment tribunal held in favour of the employee, in the subsequent appeal, the EAT overturned the tribunal’s decision relating to the discrimination and harassment claims, but upheld the decision that the employee had been constructively dismissed by her employer in breach of her contract of employment.

What does this mean for employers?

This case emphasises the caution that needs to be taken by HR managers when communicating with an employee who is out of the office due to an illness. This, however, does not mean that contact should be avoided in all cases.

Communicating with an employee during their absence may be considered fair and appropriate absence management and can, in some instances, be beneficial to the employee so that they do not feel isolated or ignored. If it is necessary to make contact, it should be aligned with facilitating the aid and logistics around the employee’s return to the workplace. Disciplinary or performance issues should not be broached in such communications.

However, alarm bells should ring if the employee’s illness is due to mental health or work-related stress. The HR team are likely to be aware of the type of illness the employee is suffering from, and any non-serious or non-urgent issues or matters should not be raised until the employee returns to work.

HR managers should review their existing policies on communicating with employees who are absent due to illness or injury. It is important to have regard for the nature and the timing of any contact and ensure that any contact made is appropriate and reasonable.

It should be common practice that any communication with employees who are suffering from mental or work-related illness be first signed off by a superior, and this should be included in any policy.

It is best to follow the common-sense approach – if you are unsure, seek advice from your manager prior to putting pen to paper. Regular training of employees to make them aware of such policies is also important. This will help to protect your organisation from potential claims of constructive and unfair dismissal of this nature.

Rory Lynch is a solicitor in the disputes team at Spring Law.

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