Raising performance concerns while you’re off sick can break your employer’s duty of trust.
“Constructive dismissalWhen your employer's behaviour is so serious that you feel you have no choice but to resign, the law may treat that resignation as a dismissal. The most common basis is a fundamental breach of the imp... upheld on appeal. Disability discrimination and harassmentUnwanted behaviour related to a protected characteristic, such as your sex, race, disability, age or religion, that violates your dignity or creates an intimidating, hostile or humiliating environment... findings overturned.”
Timing matters when your employer raises concerns with you while you are off sick. Raising performance issues during sick leave can itself break the trust that holds your employment relationship together, giving you grounds to resign and claim constructive dismissal.
- If your employer raises new concerns with you while you are signed off sick, keep a record of exactly when and how they did it.
- Disability discrimination does not require your disability to be the only reason for the treatment, but you still need clear evidence connecting the two.
- Get advice before you resign over treatment like this, since constructive dismissal claims depend heavily on the specific facts and are hard to reverse once you have quit.
The situation
A sales director was signed off sick with work-related stressPhysical or mental harm caused by pressure at work, such as an unmanageable workload or a lack of support. It is not a diagnosis on its own, but it can lead to conditions like anxiety or depression th... and anxiety, on top of an existing disability. While she was off, her employer wrote to her raising a list of performance concerns it wanted to discuss. She resigned shortly afterwards, saying the timing and content of that letter had destroyed her trust in the business and were designed to push her out.
What the tribunal found
The Employment Appeal Tribunal agreed that raising performance concerns with someone while they are off sick can break the implied duty of trust and confidence that sits at the heart of every employment contract, entitling that person to resign and claim constructive dismissal. On the disability discrimination claim under s.15 Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a..., the EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome. confirmed that a disability does not need to be the sole or main reason for unfavourable treatment. It is enough for the disability to have been a significant influence on it. On these particular facts, though, the tribunal had not shown that link clearly enough, so that part of the claim did not survive appeal. The constructive dismissal finding stood.
EAT | Constructive dismissal upheld, disability discrimination overturned | 2016