The recent decision in Private Medical Intermediaries v Hodkinson illustrates how difficult it can sometimes be to raise genuine concerns with an employee whilst they are absent due to illness.
The claimant in this case suffered from thyroid dysfunction and cardiac arrhythmia. She had a period of absence related to those conditions but was able to return to work with the benefit of a number of adjustments made by the respondent.
Following her return to work, the claimant alleged that she suffered from bullying and intimidation from two managers. She subsequently took a further period of absence, stated by her GP to be due to "work-related depression and anxiety".
After receiving the note from the claimant's GP, the respondent wrote to the claimant to ask if she wished to raise a grievance. The claimant said that she was in no fit state to discuss the matters without breaking down, felt genuinely distraught about her treatment and felt devastated and unable to sleep, concentrate or function properly.
In its response, the respondent explained that after speaking with the two alleged protagonists, there were six areas of concern they wanted to discuss with her.
The claimant resigned in response to this, claiming that the timing and nature of the six allegations amounted to a breach of the implied term of trust and confidence. She brought claims of unfair dismissal and disability discrimination.
At the ET, the claimant succeeded in the majority of her claims. In relation to unfair dismissal, the claimant succeeded with the ET finding that the respondent knew or ought reasonably to have known that raising concerns in the letter to the claimant was likely to cause her to become so upset that she could not return to work.
The Respondent appealed to the Employment Appeal Tribunal (EAT).
The EAT overturned the findings of discrimination, holding that the ET had incorrectly applied the corresponding tests. The unfair dismissal decision was however upheld. The EAT confirmed that the ET was entitled to reach the conclusion that it did, namely that any reasonable and proper cause that the respondent may have had in raising concerns with the claimant, was undermined by the fact that they were raised at a time when the claimant was very ill and apparently not fit to deal with those matters, as well as the fact that the matters were not serious and did not need to be dealt with at that stage.
This case illustrates the difficult balance that Practices need to strike when faced with concerns about an employee whilst they are absent due to illness. The circumstances of each case will be different and whether it is appropriate to bring concerns to an employee's attention during their absence will depend on a number of factors including the seriousness of the issue, the extent to which the issue is contributing to the employee's absence, the employee's state of health and prognosis, and the potential impact on the employee of raising those issues at that time.
In this case, the ET's conclusion that the issues raised were not serious, that the claimant was very ill and that she had made it clear to the respondent that she was genuinely distraught and unable to deal with the issues which she had with her managers, clearly contributed to the finding of unfair dismissal.
Other cases will be different and it is always advisable to carefully weigh up the various factors before deciding on the most appropriate course of action. In some cases it may be useful to ask occupational health whether the Practice's concerns can be raised during the period of sickness absence and for guidance about how they should be raised.