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Your client is not alone with these questions. Managing sickness absence is a regular topic of employer queries – the Office of National Statistics (ONS) recently published data showing that an estimated 185.6 million working days were lost to sickness absence in 2022; a record high for the UK. Worrying about saying the wrong thing, many employers are unsure of what to say when an employee is on sick leave.
Firstly, your client should seek agreement on the nature and frequency of contact. Arranging a regular time for a call helps the employee to mentally prepare for it, making things go more smoothly. They should also plan what they are going to say, being mindful of how it might impact the employee and deciding if it needs to be said at all.
In Lindsay v HBOS, the employee had a history of PTSD, severe anxiety and panic attacks. One of the ways they managed their conditions was their “side hustle”, a cake making business, which their employer had approved. All was fine, until the employee became too unwell to work.
As part of absence management, the employee’s manager began contacting them regularly regarding the absence. During those calls, the manager questioned the effectiveness and suitability of their medication, going so far as to insist the employee ask their doctor review it. This, against a background of the employee worrying about how long their absence would be tolerated, didn’t go down well.
This led to an agreement: no contact for at least a month, and for a message to be sent prior to any calls to prepare the employee. The manager however ignored this and called the employee to discuss posts on their social media of their cakes. The manager reminded them they were “supposed to be sick” and that they must consider the impact it was having on their colleagues. Feeling they were being attacked, the employee had a panic attack and later resigned, successfully claiming constructive dismissal, citing their managers lack of support and unreasonable behaviour.
Another case also provides some insights for your client. In McCalam v Royal Mail Group the employer was aware that their employee suffered from some form of mental health issue, and they were signed off sick with “stress at work”. The manager rang them to discuss an issue. Once resolved, however, they said “can I ask what is preventing you from working at the minute please”. Not so much of an issue, you might think, but they had the fit note. Going on they asked, “what activities are you currently completing at home?”. The tribunal found this to be demonstrative of distrust and indicated that the manager thought the employee was fit to work to some extent; this was an act of harassment, violating the claimant’s dignity and creating a hostile, humiliating or offensive environment for them.
In defence, the employer argued that this was merely clumsy wording and only intended to understand what work the employee could do at home (bearing in mind, they were a postman). The tribunal rejected this, saying that harassment doesn’t need to be deliberate. The employee won their case of harassment in relation to a mental health disability.
The above is not to say your client shouldn’t contact their employee. This would not be helpful and could hamper their return to work. Instead, they should focus on how they are, how their treatment is going, and what if anything can be done to help them come back to work, such as workplace adjustments. This will allow for a more constructive conversation, reducing the likelihood of upset, distress, and potential claims.
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