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Case law: Employer contacting employee off sick, without reasonable or proper cause, could amount to constructive dismissal

Employers who contact an employee who is off sick should think carefully about the nature of the contact and its potential effect on the employee, taking into account the importance and urgency of their reasons, and the reasons the employee is off sick. If they don't, they risk a constructive dismissal claim.

Legal Alert

This update was published in Legal Alert - June 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee claimed she had been bullied by her managers and went off sick with depression and anxiety. Her employer wrote to her while she was off saying that it wanted to discuss six areas of concern with her. There was no need for those areas of concern to be dealt with at that particular time – they could have waited. She resigned, claiming unfair constructive dismissal.

There is a constructive dismissal when an employer has done something that is so fundamentally inconsistent with the employer/employee relationship that it amounts to a 'repudiatory breach' of their contract of employment, so that the employee is entitled to treat him or herself as dismissed.

The legal test of whether there has been a repudiatory breach is whether, from the perspective of a reasonable person in the position of the innocent party, looking at all the circumstances, the contract breaker has shown a clear intention to abandon and altogether refuse to perform, the contract.

The Employment Tribunal ruled that there had been an unfair and constructive dismissal. In contacting an employee suffering from depression and anxiety about 'areas of concern' – which would obviously create further stress for the employee – the employer had acted 'without reasonable and proper cause'.

It was irrelevant that the employer had not intended to create further stress for the employee, and there was no ulterior motive.

Staying in touch with employees off sick is necessary to manage absences properly. However, this decision makes clear that employers should think carefully about the nature of the contact, taking into account the reasons why they are making contact and why the employee is off sick. Medical advice may be required in extreme cases.

Operative date

  • Now

Recommendations

  • Employers contacting employees off sick should think carefully about the nature of the contact in each case and its potential effect on the employee, taking into account the importance and urgency of the reason for the contact and why the particular employee is off sick - or risk a constructive dismissal claim.

Case ref: Private Medicine Intermediaries Limited v Hodkinson UKEAT/0134/15/LA

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