Here’s the third in our Managing Tricky Dismissals series: five short blogs where we look at complex dismissal issues and how to approach them.
“An employee has gone off sick during a formal process and is refusing to engage with the business, what can I do?”
If an employee is in the thick of a formal process that could ultimately result in the termination of their employment and refuses to engage with you, firstly – refer them to OH. Ask your colleagues in OH whether they believe the employee to be capable of engaging with the formal process during their period of leave, with adjustments if necessary.
If you’re still finding yourself stuck and the employee is unable to attend any meetings despite your proposed adjustments, then look at whether its reasonable and possible to delay the formal process.
There is an important case which we can learn from in this situation and that’s Private Medicine Intermediaries (PMI) v Hodkinson. In accordance with the EAT’s decision in this case, writing to an employee while they are on sick leave for work-related stress, to raise concerns that were not serious or urgent, can amount to a repudiatory breach of the implied term of mutual trust and confidence, and hence gave rise to a constructive dismissal. So, tread carefully, as you could be at risk of turning a fair process into an unfair process.
The content provided in this blog is for illustration purposes only and does not of itself constitute legal advice. It is your responsibility to ensure that these blogs are used in the correct context. Where tailored legal advice or further guidance is required it should be sought from a member of the Vista team.