Raising Non-Urgent Concerns with Employee on Sick Leave Breached Implied Term of Trust and Confidence

An employer who wrote to an employee on sick leave raising non-urgent concerns had breached the implied term of trust and confidence meaning that the employee was entitled to resign and claim constructive dismissal.

Speedread

An employer who wrote to an employee on sick leave raising non-urgent concerns had breached the implied term of trust and confidence. The employment tribunal had been entitled to find that the employer did not have reasonable and proper cause for its actions and that its actions were likely to damage or destroy the relationship of trust and confidence. The concerns were not urgent and did not need to be dealt with whilst the employee was very sick and apparently unable to deal with them.   

Facts

In Private Medical Intermediaries v Hodkinson, Ms Hodkinson went off sick in October 2013 with work-related depression and anxiety. She believed that she had been bullied by both her line manager and the managing director. Upon receipt of a fit note which referred to bullying, the CEO wrote to her asking if she wished to raise a grievance and meet to discuss the issues. She replied that she was too upset and unwell to communicate properly without breaking into tears and was distraught at the treatment she had received. 

Having taken legal advice and spoken to HR, the CEO wrote to her on 8 November suggesting that they have a meeting at a flexible location and advising that he had spoken to the managers concerned to find out what had gone wrong. The letter then set out six areas of concern that he wanted to discuss with her. He later admitted when giving evidence that he did not consider any of these concerns to be serious. 

On 15 November Ms Hodkinson resigned due to a breakdown in trust and confidence, stating that she considered the timing and nature of the issues raised in the November letter were intended to elicit her resignation. She claimed unfair constructive dismissal. 

Decision

The employment tribunal found that Ms Hodkinson had not been bullied, was not a credible witness (she was prone to being over-sensitive and to exaggerate) and the CEO’s November letter was not part of campaign to drive her out. The concerns raised were genuinely held and had all been previously brought to her attention appropriately. However, it decided that PMI should reasonably have known that the November letter would cause her distress and she was therefore entitled to treat the letter as a repudiatory breach of contract entitling her to resign. It therefore upheld her unfair dismissal claim.

The Employment Appeal Tribunal dismissed PMI’s appeal. The employment tribunal had been entitled to find that PMI had, without reasonable and proper cause, conducted itself in a manner likely to damage or destroy the relationship of trust and confidence. The CEO’s November letter raised a number of concerns that were not serious and which did not need to be dealt with at that stage.  The letter was also written to a very ill employee who was apparently not fit to deal with the matters. In coming to its conclusion that the employer did not have reasonable and proper cause for its actions, the employment tribunal had not lost sight of its earlier findings that PMI’s concerns were genuine, that it had a right to raise its concerns, nor had it lost sight of its finding as to Ms Hodkinson’s misperceptions of the situation. 

Implications

Employers always need to tread carefully when dealing with an aggrieved employee on sick leave. As this case indicates, there is a risk that if an employer raises employment concerns with an employee on sick leave, this may give grounds for constructive dismissal. The key question an employer should consider is whether it is necessary to raise the issue whilst the employee is on sick leave or whether it can await the employee’s return to work. If the concern is serious then the employer may be justified in raising it immediately but in the case of non-urgent concerns it should await the employee’s return. The nature of the sickness will also be relevant. An employee suffering from stress or depression will be more vulnerable than, for example, an employee with a broken leg.