Employers often ask if it is acceptable to make contact with an employee whilst they are absent from work due to sickness. The answer is almost always absolutely!
In fact, it is good HR practice to keep in regular contact with an absent member of staff, and we would always advise that employers continue, within reason, to communicate with an employee throughout their absence. Communication not only allows the employer to keep abreast of the employee’s condition, but allows for open discussion about a possible return to work, whether any adjustments would support an earlier return and can also prevent the employee from feeling isolated from and anxious about their employment.
However, the recent case of Private Medicine Intermediaries Ltd v. Hodkinson (2015) demonstrates that caution needs to be exercised when an employer chooses to raise concerns regarding an employee’s performance or conduct whilst they are off sick.
H, employed by PMI as Director of Sales, suffered from a disability which resulted in a period of long-term sickness absence. She returned to work in September 2013 on reduced hours, but was signed off work again in October due to work-related depression and anxiety.
As the fit note referred to bullying, the employer wrote to H offering to meet with her so they could discuss her issues. In the same letter, the employer also listed 6 areas of concern regarding H’s performance that they wanted to discuss with her.
Following receipt of this letter, H resigned from her position and claimed constructive unfair dismissal and disability discrimination.
On appeal, the EAT overturned the ET’s decision that PMI had discriminated against H, but upheld the ruling that she had been constructively and unfairly dismissed. It was held that the employer’s letter amounted to a fundamental breach of contract due to a breakdown of trust and confidence, and H was therefore entitled to resign and claim constructive dismissal. Notably, it was highlighted during the case that the 6 issues raised by the employer in the letter were not urgent or serious.
What does this mean for employers?
Our advice remains the same, that communication between employer and employee should continue during a period of sickness absence for all of the reasons set out above. However, contact should occur within reasonable boundaries and preferably on terms with which the employee has agreed.
Where concerns come to light about the employee’s conduct or performance whilst they are off work, wherever possible these should not be addressed until the employee has returned to work, particularly if the issues are not serious or urgent. Where the issues are more pressing, the employer may consider contacting the employee to discuss them, but should approach carefully, especially if the reason for absence is stress-related.