How to strike the right balance when contacting employees who are off sick
It's important to maintain a certain level of contact with employees who are off sick to understand what is happening and provide support and assistance where needed. However, an employee may also need time to rest and recuperate, so getting the balance right is important. In Miss Crette Berry v Anglian Water Services Ltd the employer got this wrong and ended up harassing the employee they were trying to support.
Facts
Miss Berry, a contact centre agent, was hired on a flexible basis which meant that she worked 37 hours a week on a random pattern which was organised and provided to her three weeks ahead of time.
Two months after her employment started, she made a flexible working request to give her time to rest physically and help manage her menopausal symptoms and reduce stress levels.
The day after Miss Berry submitted the flexible working request, she was off sick for gynaecological reasons. Upon her return-to- work, she agreed to an occupational health assessment and the report explained that Miss Berry has endometriosis which she has had for approximately 10 years, and she was waiting for a hysterectomy. The report explained that she can suffer with severe brain fog, pain in her stomach and menopausal symptoms such as hot flushes and fatigue.
Ultimately it was agreed that Miss Berry's working pattern would consist of four working days together within a four-week schedule based over a four-week rolling schedule averaging 30 hours per week.
Miss Berry was then absent on a number of occasions. As she crossed the absence trigger point, an attendance support meeting took place where she disclosed that she had depression. A few days after this meeting, Miss Berry went off sick with long-term absence.
Miss Berry then raised a grievance and shortly after she received the outcome, she had a hysterectomy. Two weeks later she was invited to attend a second attendance support meeting, and she was then contacted multiple times by her line manager over WhatsApp about the meeting. This was despite her line manager knowing about the surgery, when it was taking place, and that she needed a three/four week recovery period.
In the end the meeting took place in her absence, however, just over a week later, Miss Berry resigned. She brought claims to the Employment Tribunal (ET) for failure to make reasonable adjustments and harassment related to disability.
Employment Tribunal
The ET found that Miss Berry was disabled because of her endometriosis, menopause, and depression.
The tribunal dismissed her reasonable adjustments claims but agreed that she had been harassed because of the contact she received while she was unwell following her surgery.
Harassment occurs when an employee is subjected to unwanted conduct that is related to a relevant protected characteristic (in this case, disability), and the conduct has the purpose of effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.
The ET said that Miss Berry should have been allowed to recover from her surgery without being disturbed. Whilst the ET found that the line manager's contact was not intended to humiliate Miss Berry, it did have that effect on her.
Key points to remember when communicating with employees who are off sick
- The frequency and type of contact that is appropriate when an employee is off sick will vary from employee to employee. There's no one size fits all approach.
- Consider your method of communication - instant messaging platforms like WhatsApp may not be the best way to reach an employee who is off sick because they put pressure on the receiving party to respond quickly.
- Agree how you will communicate with your employee so you both know where you stand and what is expected.
- Be flexible - things can change so be prepared to change your approach where needed.
- Take a note - it's best to record your discussions so that you have a paper trail of what is said.
In Miss Berry's case, the ET said that the overwhelming majority of contact from her employer was polite and appropriate, but the issue arose in the contact after the surgery because the line manager failed to take into account the specific circumstances - the claimant needed time to recover after surgery. Communicating with employees whilst they are off sick will need to be flexible and adaptive in order to achieve that right balance.
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