A recent case where a worker won her tribunal claim after receiving a birthday card while on sick leave shows that employers must take a cautious approach to contacting staff on sick leave. Rhys Wyborn explains.Â
In cases of sick leave, particularly when attributed to work-related stress, employers must ensure they provide adequate support without overstepping boundaries.
With the recent news of an HMRC worker winning a tribunal due to unwanted contact during her absence, businesses should aim to maintain a consistent and reasonable approach or risk potentially severe legal consequences, particularly when illness and protected characteristics overlap.
The recent tribunal decision serves as an important reminder for businesses to adopt a consistent and reasonable approach to sick leave that combines company policy with case-by-case consideration.
This becomes increasingly important in absences due to work-related stress where low levels of contact have been requested, and employers must walk a careful line between keeping the worker updated on important business matters and preventing unwanted contact.
Create a framework
To do this, companies should put a clear policy in place that establishes a foundation for the typical approach to communication during sick leave. This can act as a basic framework.
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This policy should outline clear and transparent touchpoints, such as when the employer would typically contact absent workers with relevant business updates, and how they will keep in touch during periods of longer-term sickness absence.
Creating a framework means that companies can make specific adaptations where necessary, for example in a case of work-related stress, and help employees understand that some level of contact will be necessary throughout their leave.
By having a framework of communication, businesses can ensure that they perform their duty of care, without risking allegations of unwanted contact or unlawful harassment.
With an internal policy established, employers should hold honest and supportive conversations with the individual worker and aim to agree a communication plan that is in line with company policy as early as possible.
Managing expectations
The employer should also gain an understanding of the worker’s expected levels of contact and whether they require additional adjustments, especially where there is a disability under the provisions of the Equality Act 2010.
For example, in cases where the employee has a physical or mental illness at the time of absence which could be impacted by unwanted contact, the worker may wish to specify alternative methods or times of contact, or the company may find opportunities to provide additional support to the worker according to their preferences.
During this stage, the business and absent worker should agree on a clear timetable of contact that aligns with company policy and makes reasonable adjustments where required.
This agreed framework should then be outlined in writing and made available to the employee.
By setting out a clear communications plan in the early stages of absence, employers can ensure a consistent and agreed approach that prevents unwanted contact contributing to further stress for the worker.
Protected characteristics
Issues of unwanted contact during sick leave may become more complex when considering protected characteristics and could further impact the employee if reasonable adjustments aren’t made.
Symptoms of some illnesses or longer-term conditions could be exacerbated if companies overstep contact boundaries, for example, or fail to accommodate the individual’s needs.
This could potentially lead to tribunal claims on the grounds of unlawful harassment related to a protected characteristic such as disability.
To avoid these cases, businesses should ensure that any communication plan has considered the situation of the worker along with available medical advice.
They should also be aware that tribunal claims can arise if employees face unfair treatment as a result of their absence, or for requesting further adjustments during the absence period.
If companies are found to have contributed to a hostile and intimidating environment towards workers because of this, it could be perceived as harassment on the basis of protected characteristics.
Be consistent
A clear company policy, a commitment to open dialogue and agreed, individualised, communication plans are essential for employers when a worker goes on long-term sick leave.
Issues of unwanted contact during sick leave may become more complex when considering protected characteristics.”
It is vital that businesses remain aware that a single successful allegation of unwanted contact and harassment linked to a protected characteristic can lead to severe legal consequences, so remaining consistent in their approach is the best way to mitigate the risk.
While companies have a responsibility to their teams to spread the workload and keep operations running smoothly in the face of absences, this must be balanced with their duty of care to the workers on leave.
By implementing a consistent and reasonable approach, employers can strike the right balance and ensure individuals are properly supported throughout their absence.
By avoiding hasty reactions and sticking to the agreed communication plan, they can mitigate the risk of claims and support their employees both at work and on leave.
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