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Sick leave
[ch 8: pages 299-300]Keeping in touch with staff who are off sick
Many sickness absence procedures contain rules for keeping in touch during sickness absence. These rules may require employees to contact their employer at regular, even pre-set, intervals. They should not be implemented in an unreasonable manner.
When sensitively managed, regular contact is generally recognised as good practice. As the HSE says, “regular contact helps to keep work on [the] agenda and offers good opportunities to plan the return to work”. Many procedures are designed to encourage contact. However, if an employer turns up unexpectedly or telephones too frequently or at inappropriate times of the day, this is likely to be intrusive. A rep can help the member organise with the employer the best time, method and regularity of communication during long-term sick leave. The new Fit for Work Service is also relevant here (see page 291).
An employer who makes inappropriate contact with an employee on sick leave risks being found to have fundamentally breached the employment contract, as this recent case demonstrates:
Ms Hodkinson was off work with work-related depression and anxiety which she linked to bullying by senior managers. While off sick, she received a letter from her employer’s Chief Executive Officer (CEO) raising six “areas of concern” that her employer wanted to discuss with her. Distressed by this, she resigned and brought a tribunal claim alleging disability discrimination, harassment and constructive dismissal. An employment tribunal found that the issues raised by the CEO were neither serious nor urgent, and some had already been resolved. The EAT agreed with the tribunal that the employer’s decision to raise these issues by letter in an unselective way, knowing, or when they should have known, that the letter was likely to upset Hodkinson so much that she would be unable to return to work, was a fundamental breach of contract that led to her resignation (constructive dismissal).
Private Medicine Intermediaries Limited v Hodkinson & Another [2016] UKEAT/0134/15/LA
Failing to keep a worker who is off sick during disability-related absence properly informed over important work developments, such as redundancy or the availability of voluntary severance, is likely to breach the duty to make reasonable adjustments (Chawla v Hewlett Packard Limited [2015] UKEAT/0280/13/BA).
Even if an absent worker is not disabled, failing to inform and consult over important changes to contract terms is likely to be a breach of the contractual duties of good faith, trust and confidence (see Chapter 3).
There are also important statutory duties to consult collectively over proposed redundancies or TUPE transfers (see Chapters 11 and 12). Special arrangements must be made to make sure absent workers are not forgotten.