Thursday, 9 Jun 2016

Can you communicate with an employee when they are on work related stress sick leave?

Can you communicate with an employee when they are on work related stress sick leave?

Often matters arise when an employee is on sick leave which the employer may feel they need to discuss with them. Whilst an employee is on sick leave due to work-related stress can the employer communicate with them, and if they can under what circumstances?

Employers often struggle with the question of whether to make contact with employee on sick leave due to work-related stress and how to contact them, because the case law in this area is highly dependent upon the facts of each case. In a recent case a disabled employee who went off sick with work-related stress was held to be constructively dismissed when the employer wrote to them regarding a meeting and listed their concerns for the discussion.

In this case the employee had cited bullying in her fit note and upon receiving the letter listing the employer’s concerns for discussion had resigned and claimed constructive dismissal, harassment and discrimination arising from disability. Although the employer had sent the letter due to genuine concerns, the tribunal found that as the employee was prone to over-sensitivity the employer should reasonably have known that it would cause distress. This allowed the employee to treat the employer’s actions as a repudiatory breach of contract and entitled the employee to claim constructive dismissal. The EAT however dismissed the claims for harassment and discrimination as the letter was sent to address genuine concerns rather than for any ulterior motive.

For employers in similar situations it would be best to maintain a line of communication with the employee during their absence, either directly or through a third party. The doctor of the employee may be able to advise upon the best way for the employer to contact the employee or whether the employee’s illness is so severe that the employer should not attempt to contact them at all. Where the employer does contact the employee the key is to remain sensitive to the employee’s condition and not to address matters which are not urgent and could wait until the employee is in a better position to address such matters.

For further advice or assistance on employment matters contact our Bradford Solicitor and Employment Law Specialist Umberto Vietri ( Partner) on 01535 613674 or at umberto.vietri@awbclaw.co.uk

 

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