UK: Discipline - raising non-urgent or trivial concerns while an employee is on stress-related sick leave may amount to constructive dismissal

Employers should consider carefully whether it is necessary to raise disciplinary concerns with an employee while they are absent on stress-related sick leave, or whether they could defer doing so until the employee's return. Raising concerns which are not serious or urgent, or which have already been dealt with, may amount to constructive dismissal. The fact that the employee has raised a grievance, and does want this dealt with before their return to work, does not by itself justify adding in disciplinary concerns for discussion at the same time – these may need to be dealt with separately and post return.

In Private Medicine Intermediaries Ltd v Hodkinson, an employee who was absent with work-related depression and anxiety submitted a fit note referring to alleged bullying. The employer wrote to ask whether she wished to raise a grievance and she replied that she was too upset at her treatment and too unwell to do so at that time. The employer then wrote again suggesting a meeting within the month to discuss both the bullying allegation and several areas of concerns it had with her employment. The EAT ruled that this second letter was a breach of the implied duty of trust and confidence, notwithstanding the tribunal's finding that the employer genuinely held the concerns raised. The employee was known to be very ill and the concerns were not serious and did not need to be dealt with at that stage; indeed some had already been dealt with.

The ruling serves as a reminder to employers to consider carefully the timing of communications raising concerns with employees absent due to mental ill-health, depending on the nature of the illness and any medical advice, the employee's expressed wishes and how urgent and serious any concerns really are. The ruling does not mean an employer should never contact a sick employee to raise disciplinary concerns - much will depend on the circumstances.