When an employer wrote to an employee to raise concerns over her employment whilst she was on sick leave due to work-related depression and anxiety, did they breach the implied term of mutual trust and confidence and/or subject her to disability related harassment or discrimination?
Private Medicine Intermediaries Limited and others v Hodkinson
Private Medicine Intermediaries Limited (PMI) is an insurance intermediary. It employed Miss Hodkinson most recently as a sales director, from September 2006 until her resignation in November 2013. Miss Hodkinson is disabled within the meaning of the Equality Act 2010, by reason of a thyroid dysfunction and cardiac arrhythmia. After a period of absence from work due to that condition during the summer of 2013, she returned in September 2013 on reduced hours with other adjustments being made to assist her return. In making those adjustments, PMI was largely following advice obtained from occupational health. However, it did not carry out a formal review or weekly meetings to review Miss Hodkinson’s progress, or a risk assessment, all of which were recommended by occupational health.
Around a month later, Miss Hodkinson had another period of absence but this was not due to her disability; it was due to work-related depression and anxiety, which she attributed to bullying and intimidation by her line manager and PMI’s managing director. She was asked whether she wanted to raise a grievance and was offered a meeting to discuss her concerns, to which she said that she was in no fit state to communicate, felt genuinely distraught and was unable to sleep, concentrate or function properly.
PMI’s Chief Executive responded to that letter and suggested that they meet before the end of the month at a location to be agreed (the November letter). He confirmed that he had spoken to the line manager and managing director about the background to find out what had gone wrong. The November letter went on to say that there were six areas of concern that he wanted to discuss with Miss Hodkinson, none of which were considered to be serious or urgent.
Miss Hodkinson responded by giving notice of her resignation due to a breakdown in trust and confidence, and said that given the timing and nature of the allegations relating to her performance and commitment, they could only have been intended to elicit her resignation.
Miss Hodkinson brought claims against PMI (and also originally against her line manager and managing director personally) for constructive dismissal, disability discrimination in the form of unfavourable treatment because of something arising in consequence of a disability, and disability related harassment.
Employment Tribunal (ET)
The ET found that PMI’s failure to inform itself and/or to formally review Miss Hodkinson’s position during her period of rehabilitation into work amounted to disability discrimination being unfavourable treatment because of something arising in consequence of a disability. Further, the November letter amounted to both an act of harassment and conduct in breach of the implied term of mutual trust and confidence, and thereby she was entitled to resign and consider herself constructively dismissed.
The ET recorded that Miss Hodkinson was not a credible witness due to her oversensitivity. It also found that her colleagues were cautious in their dealings with her because they felt that she had a tendency to be oversensitive and exaggerate. By way of example, she claimed to feel intimidated and bullied by her line manager and the Managing Director during a meeting, but the ET found that the meeting was a reasonable and proper opportunity afforded by PMI’s directors to clear the air with her.
That said, PMI knew of or ought to have known that the November letter was likely to cause Miss Hodkinson to be so upset that she could not return to work, but it had decided to take the risk anyway. Whilst it found that PMI’s concerns were genuinely held; had previously been brought to her attention and were not part of a campaign to drive her out of her job, sending the November letter was still an act of disability related harassment and fundamental breach of contract so as to justify her resigning, which it found that she did in response to the breach. PMI appealed.
Employment Appeal Tribunal (EAT)
The EAT allowed PMI’s appeal in relation to the discrimination and harassment findings but rejected the appeal in relation to the constructive unfair dismissal finding.
The EAT could see no basis for a finding that she had suffered unfavourable treatment for the purposes of discrimination arising from a disability. PMI’s reason for not following the recommended formal reviews and risk assessment was because they believed that an informal process would be sufficient, not because of something arising in consequence of her disability.
The anxiety and depression that Miss Hodkinson was suffering at the time that the November letter was received was not found to be related to her disability. Therefore there was no link between her disability, the depression and anxiety episode and the November letter.
On the constructive unfair dismissal point, the EAT set out the well-established test to be satisfied for constructive dismissal: (1) there must be a breach of contract by the employer; (2) that breach must be sufficiently important to justify the employee resigning; (3) the employee must resign in response to the breach; and (4) the employee must not delay in terminating the contract in response to the breach
The EAT found that PMI’s breach in sending the November letter was sufficiently serious to entitle Miss Hodkinson to treat her employment as at an end. This was particularly so, given that it included a number of concerns that were neither serious nor urgent, did not need to be dealt with at that stage (some had already been dealt with and were closed), and was considered in the context of writing to a very ill employee who was not fit for work to deal with those matters. Miss Hodkinson resigned in response to the breach and therefore the appeal against the finding of constructive unfair dismissal was dismissed.
Maintaining appropriate contact with an absent employee during sick leave is important. On the face of it, this case sends the message to employers that if an employee is off sick with stress and is aggrieved about the way that they have been treated at work, then raising concerns with them could give rise to a successful unfair constructive dismissal claim. Employers should take the outcome of this case with a pinch of salt as each case will depend on its own facts.
Both the ET and the EAT in this case appeared to be swayed by the concerns raised in the November letter being neither serious nor urgent, with some of them having already been dealt with.
Employers need to get the balance right between addressing work-related issues with an absent employee and the potential effect on the employee. Depending on the circumstances, the employer may wish to consider taking medical advice as to whether the employee is able to cope with the concerns before raising them with the employee. If there are serious concerns which need to be addressed and are hanging over the employee, guidance indicates that it is usually better for an employee’s wellbeing that they are dealt with, rather than being drawn out.
If you have any queries relating to sickness absence or if you have any other employment or HR queries Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.