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By Eric Gilligan, Partner and head of Stronachs’ employment team

The management of employees on sick leave, particularly long-term sick leave, is a significant challenge for employers. Quite apart from the difficulties arising from the requirement to cover the work the sick employee is not undertaking and to ensure that colleagues are not overloaded and that their morale is not adversely affected the issue of engagement with long-term sick employees gives rise to particular risks. These are often compounded if the employee experiences mental health difficulties such as anxiety or depression whereby interactions with management may be negatively perceived with accusations or perhaps even claims arising of disability discrimination (of various types) and of constructive dismissal.

One such scenario was explored in a recently reported Employment Appeal Tribunal (EAT) case of Private Medicine Intermediate Limited and Others v. Hodgkinson UKEAT/0134/15.

Facts

The facts of the case were that Miss H was employed as a director of sales until her resignation in November 2013. She suffered from a thyroid dysfunction and cardiac arrhythmia and it was accepted that she was disabled within the meaning of the Equality Act. In September 2013 she returned to work from a period of sick leave and following advice from its occupational health (OH) advisor the employer implemented several adjustments to Miss H’s working conditions including reduced hours. However, it decided not to follow two of the OH recommendations in relation to formal review meetings and risk assessment and instead opted to follow a less formal approach. Ms H subsequently went off sick again with work-related depression and anxiety asserting that she had been bullied and intimidated by her line manager. The employer’s CEO, Mr B wrote to Miss H asking whether she wished to raise a grievance and to meet to discuss the issues. Miss H wrote back stating that she was too upset and unwell to communicate properly and was distraught by the treatment she had received by her employer. Mr B then wrote to Miss H again suggesting that they had a meeting at a flexible location and advising that her line managers had been spoken to find out what had gone wrong. The letter also set out six areas of concern that Mr B wanted to discuss with Miss H. Ms H then resigned stating that she considered the timing and nature of the issues raised in the letter were intended to elicit her resignation and brought claims of constructive unfair dismissal, discrimination arising from disability, harassment and failure to make reasonable adjustments.

The Employment Tribunal decided that the letter amounted to an act of disability-related harassment and breached the implied term of mutual trust and confidence entitling Miss H to consider herself constructively unfairly dismissed. Surprisingly this was against the background of the Tribunal making findings that Miss H had not been bullied or intimidated by her line manager, that she was not a credible witness and was prone to being oversensitive and to exaggerate and that the letter sent to her was not part of a campaign to drive her out, the concerns being genuinely held by the employer and having been previously appropriately brought to her attention. The Employer appealed the judgement.

The Appeal

On appeal the EAT carefully deconstructed and rejected the disability discrimination claims. Firstly in relation to the claim of disability-related harassment it found that the Tribunal had failed to properly apply the requirement under Section 26(1) (a) of the Equality Act that unwanted conduct must be “related” to the Claimant’s disability. The Tribunal had found that the letter related to Ms H’s debilitating illness but had made no finding that the illness in question at the time the letter was received (the depression and anxiety) was in fact related to her actual disability of thyroid dysfunction and cardiac arrhythmia.

In relation to the claim about discrimination arising from disability, this was also rejected firstly because there was no relevant “unfavourable” treatment. For the treatment to be unfavourable it had to pose some form of disadvantage and the failure to carry out a formal review or risk assessment could not amount to such disadvantage. The Tribunal had focussed on issues of process rather than substance and confused issues which might be relevant in an unfair dismissal claim with what the statutory protection was directed at. In addition the Tribunal’s finding that the treatment had been because of “something” arising in consequence of Miss H’s disability was again inconsistent with its finding that the employer’s actual reason for not making the suggested adjustments was that it believed an informal process would be sufficient.

However, the EAT upheld the constructive dismissal finding against the employer. It was apparent that the Tribunal had been influenced by its finding that the letter was written to an employee who was known to be very ill and raised a number of concerns that were not serious and did not need to be dealt with at that stage. Indeed, some of the issues raised had already been dealt with and were closed. The Tribunal had also been entitled to conclude that the letter had been a causative factor in Miss H’s resignation.

Comment

The case is helpful to employers in resisting claims of disability discrimination which may be based on legitimate attempts to engage with an employee on long-term sick leave. In particular, it is clear that the Tribunal should be slow to characterise unwelcome but reasonable management as disability-related harassment without thinking through the link with the disability. Similarly, the approach of the EAT is useful in rejecting the contention that the mere context of disability will be sufficient to allow an employee to characterise any conduct on the part of the employer which he/she does not welcome as unlawful discrimination arising in consequence of disability or as disability related harassment.

However, the finding of constructive dismissal is disappointing from the employer’s perspective and is difficult to reconcile with the findings that the concerns notified to the employee were genuinely held by the employer and indeed that the employee was oversensitive and prone to misinterpret her employer’s actions. One explanation for the apparent inconsistency is a technical one that it is always more difficult on appeal to overturn a finding of constructive unfair dismissal than other claims because constructive dismissal is essentially a question of fact for the Employment Tribunal to determine. On the face of it this part of the decision might seem to indicate that, if an employer raises concerns with an employee who is absent with stress or anxiety issues, they run the risk of a successful claim of constructive dismissal. However, while this element provides a cautionary note that an employer should be careful about raising concerns with a vulnerable employee which are not serious or urgent the broad thrust of the decision actually shows that, as long as an employer approaches these matters sensitively, it is clearly entitled to properly manage employee absence without that necessarily giving rise to well-founded claims of harassment or disability discrimination.

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