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November 29, 2024

Legal Issues – Contact whilst off sick

Recent cases have highlighted the difficulty employers face when maintaining contact with employees who are off sick.

The case of Crette Berry v Anglian Water Services Ltd is one such example. In this case the Claimant worked as a contact centre agent and suffered from endometriosis and menopause, anxiety and depression. Following her resignation, she brought disability discrimination claims for failure to make reasonable adjustments and harassment.

One of the harassment claims was successful. The Claimant had undergone a hysterectomy, and her employer was aware that her recovery time was around a month. The Respondent should not have contacted her during this period. The Respondent had invited her to an absence review meeting to discuss her return to work, scheduled to take place a month after the surgery. When the letter invitation was not responded to, the Respondent followed up with multiple text messages on three separate days in relation to the meeting.  It was stated by the tribunal that whilst the contact was “polite and appropriate” it was still unwanted conduct relating to the Claimant’s disability that had the effect of humiliating her.

The case of Toure v HMRC involved a Claimant employed as a customer service consultant who raised claims regarding over 20 incidents of racial and disability harassment. One of the 10 successful claims related to an incident where the Claimant received a birthday card (and 11 emails) whilst off sick with stress. The Claimant had requested that she only be contacted via email when essential. The Claimant’s manager had a note of all the staff’s birthdays and would arrange for cards to be sent but the Claimant had asked to be removed from this list. This was also found to be unwanted conduct.

What does this mean for employers? It shows that caution must be taken and that attempts to provide support can sometimes backfire. A balance must be struck between providing support and unwanted conduct. The approach must consider reasonable time frames and be considered on a case by case basis. 

If you have any questions on any of the issues raised in the above article, please contact Alan Sutherland.

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