The EAT has upheld a decision that an employer committed a repudiatory breach of an employee's contract of employment by raising performance concerns during a period of sick leave (Private Medicine Intermediaries Ltd v Hodkinson and others, EAT).
The claimant was absent from work due to work-related depression and anxiety, which she attributed to bullying by two colleagues. She and her doctor had both told her employer that she was feeling extremely vulnerable as a result of the bullying, to the extent that she did not feel able to raise a grievance.
The Chief Executive of the employer wrote to the employee about the bullying complaints. Among other things, he wrote that he wished to discuss "six areas of concern" about her performance and commitment. One week later the claimant resigned, directly citing the six concerns raised as contributing to her resignation. She succeeded in claims for constructive unfair dismissal, disability-related harassment and discrimination arising from a disability. She failed in a claim of failure to make reasonable adjustments. The employer appealed.
The EAT upheld the appeal against the discrimination claims but agreed with the Tribunal that the claimant had been constructively dismissed. In the circumstances, notwithstanding findings of fact that the employee was overly sensitive, the Chief Executive ought reasonably to have known she was not fit to deal with the concerns in the letter.
Furthermore, the Tribunal had found that the Chief Executive did not believe any of his concerns to be serious; indeed, some had already been resolved. Therefore, it had not been strictly necessary to raise them. Accordingly, sending the letter was sufficiently serious as to amount to a repudiatory breach, and the employee's direct reference to it in her resignation letter was satisfactory evidence that it had caused her resignation.
Despite the employee's excessive sensitivity, the employer still committed a repudiatory breach as it did not have reasonable cause to include these concerns in the letter (although they were genuine), and ought to have known the effect this would have on the employee as they had been informed of her vulnerability.
The fact that the employee's stress was work-related, and that the concerns were not serious and/or had already been dealt with, seems to have contributed to the constructive dismissal finding.
This case should not be read as prohibiting employers from raising concerns with a vulnerable absent employee. However, a more sensitive approach is clearly required in these circumstances, and employers should raise only those issues which are essential and cannot await the employee's return.
Rather than raising performance concerns as part of a response to a grievance, performance issues and grievances should be dealt with separately. Otherwise, employers risk raising the inference that they are penalising employees for raising grievances.