Unwanted Conduct During Sick Leave: How Can Employers Avoid Overstepping Boundaries?

The recent case of a HMRC worker winning a tribunal due to unwanted contact during her absence has highlighted the importance for employers not to overstep boundaries, and maintain a consistent yet flexible approach to managing sick leave. This is particularly crucial when dealing with absences related to work-related stress, where employees may request minimal contact. Employers must carefully balance the need to keep employees informed about important business matters, while respecting their wishes for reduced communication.

Establish a clear sickness policy

A clear and comprehensive policy that outlines the standard communication protocol during sick leave will help to balance the need for contact, without overstepping boundaries. This policy should serve as a basic framework, detailing when and how the business will reach out to employees who are absent for extended periods. Clear touchpoints, such as updates on key business matters, should be established to ensure employees feel informed without feeling overwhelmed.

Having this policy in place allows employers to make necessary adjustments on a case-by-case basis. For example, in situations involving work-related stress, employers can explain that while some level of communication is inevitable, they are committed to being respectful and considerate. This approach can ensure employers fulfil their duty of care without risking allegations of unwanted contact or unlawful harassment.

Facilitate open and supportive conversations

With a sickness policy in place, employers can then engage in honest, supportive conversations with the individual employee. It’s important to agree on a communication plan early on that aligns with company policy, while considering the employee’s individual needs. Employers need to understand the employee’s preferred level of contact and be prepared to make additional adjustments, especially if the employee has a disability covered under the Equality Act 2010.

For instance, an employee with a physical or mental health condition might prefer alternative methods or timings of contact. Employers should be proactive in offering additional support tailored to the employee’s preferences. The agreed communication plan should then be outlined in writing and shared with the employee, ensuring both parties have a clear understanding of the expectations.

Be mindful of protected characteristics

The issue of unwanted contact can become even more sensitive when protected characteristics are involved symptoms of some illnesses or longer-term conditions could be aggravated by excessive or poorly timed communication. If employers fail to accommodate the employee’s needs, they risk facing tribunal claims on the grounds of unlawful harassment related to a protected characteristic such as disability.

To prevent these cases, employers must ensure that any communication plan takes into account the employee’s situation and any medical advice available. Employers should also remain mindful that tribunal claims can arise if employees face unfair treatment as a result of their absence, or for requesting further adjustments during the period of absence. If employers are found to have contributed to a hostile and intimidating environment towards employees because of this, it could be perceived as harassment on the basis of protected characteristics.

There is a fair balance between necessary contact, and respecting boundaries

A well-defined sickness policy, open communication, and tailored support plans are essential for employers when managing long-term sick leave. Consistency in approach is key to minimising legal risks, especially when dealing with protected characteristics.

While it’s essential for businesses to maintain operations during employee absences, this must be balanced with their duty of care to any employees on sick leave. By adhering to agreed communication plans and avoiding hasty decisions, employers can strike the right balance and ensure individuals are properly supported throughout their absence.