Constructive unfair dismissal: employers should pause before writing that letter

The Employment Appeal Tribunal (EAT) has upheld a decision that contacting an employee to raise non-urgent concerns while they were off sick amounted to a repudiatory breach of contract.

In the recent case of Private Medical Intermediaries (PMI) Ltd and others v Hodkinson the Claimant, Miss Hodkinson, was employed by PMI. It was accepted that she was disabled for the purposes of the Equality Act 2010. In October 2013 she went off sick with depression and anxiety relating to alleged bullying and intimidation by her line manager and the managing director of the company.

The CEO of PMI wrote to Miss Hodkinson (whilst she was off sick) asking whether she wanted to meet to discuss the issues and whether she wished to raise a grievance. She replied saying she was too upset to form a response. The CEO wrote to her again the following month to inform her that he had spoken to her line manager and the managing director about the allegations and he would like a meeting with her to discuss some areas of concern with her work. Miss Hodkinson resigned a week later citing a breakdown in the relationship of trust and confidence.

Miss Hodkinson brought Employment Tribunal claims for constructive unfair dismissal, discrimination arising from disability, harassment and failure to make reasonable adjustments. On the facts of the case, the Tribunal agreed that the CEO’s second letter was capable of amounting to a fundamental breach of the implied term of mutual trust and confidence. The company should have reasonably known that sending the letter while Miss Hodkinson was on sick leave would cause her distress. She was therefore entitled to resign and claim constructive unfair dismissal.

The company appealed the decision, however, the EAT upheld the finding that Miss Hodkinson had been constructively dismissed and agreed that the second letter was a causative factor in her resignation. The EAT did overturn the Tribunal’s decision that the letter also amounted to disability-related harassment and discrimination arising from disability – they said there were no facts that connected the absence with her disability, or which showed that the letter had created a humiliating, offensive, or hostile environment for her.

Although each case will turn on its own facts, this decision is a cautionary reminder to employers to think carefully before raising non-urgent concerns with an employee who is off sick. In Miss Hodkinson’s case the EAT judge took particular note of the fact that the CEO’s letter raised concerns that were “not serious” and “did not need to be dealt with at that stage”.  Even where a more serious and pressing issue needs to be raised during a period of sickness absence, employers would be wise to take a moment to consider how best to approach the issue with an ill employee. Thinking outside the box and taking the least confrontational approach, such as a face to face meeting or telephone call, could avoid a constructive dismissal claim further down the line.