“Keep Me In The Loop” – “Leave Me Alone” – sickness absence dilemmas
Posted on 6th August 2024 at 13:16
In the era of instant multimedia communication, how can an employer balance “fear of missing out” with the need for undisturbed recuperation when an employee goes off sick? Of course it’s rarely likely to be a problem where there is no issue of workplace stress and anxiety. Otherwise, it is so easy to make a mistake.
On 19 November 2022, evidently International Men’s Day, a Sainsbury’s Regional Store Director posted a LinkedIn commemoration of “male leaders” who would “show up for work each day, put on a name badge and provide support, guidance and leadership…” He tagged almost all of those store managers in his region. He did not include Darren Cooper from Pontypridd, a disabled employee who had been signed off with work related anxiety for 16 weeks and had deleted his WhatsApp account, implicitly to minimise contact from colleagues.
Best intentions? Not accepted as such. Mr Cooper claimed that this caused “untold further damage” to his health, making him feel “excluded, humiliated and violated” as a result of people contacting him and asking if he had left Sainsburys. When he was dismissed for medical incapability 7 months later, having never returned to work and having raised 48 complaints in the meantime (only one being upheld, in part), he issued tribunal proceedings. Alongside his unfair dismissal claim, he raised 21 issues relating to alleged disability discrimination linked to conceded mental health issues, and harassment.
After a 5 day hearing, it was decided that despite Mr Cooper’s 30 years of service, his dismissal was within the range of reasonable responses open to a reasonable employer, and therefore fair. Sainsburys could not be expected to await his return any longer. However, the complaint about not being mentioned in the LinkedIn post was upheld, not only as harassment related to disability, but also as unfavourable treatment because of something arising in consequence of disability. The remaining complaints all failed.
What did Sainsburys and the RSD do wrong? The tribunal decided that the RSD should have told Mr Cooper about the forthcoming LinkedIn post when speaking to him on the previous day, and asked him if he wanted to be mentioned in it. His knowledge of Mr Cooper’s disability tainted the decision not to mention him. The possibility that this might only have led to more unwanted contact, adversely affecting his feelings in a different manner, was not explored. The tribunal did at least note that the RSD’s intent – implicitly not malicious – would be “an important factor when assessing compensation”.
In practice, no workplace policy on sickness absence contact is likely to cover all eventualities. If a well intended “how are you” was met with “leave me alone”, credit may still be due for having asked. Similarly, where workplace related social media posts are concerned, the path to greater credit may be to include the absent employee, and then take appropriate note of the reaction. No two instances are ever going to be the same.
Do you have a long term sickness management problem? Uncertain about how much contact to maintain, or when and how to move towards letting someone go? We can help. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
Tagged as: disability discrimination, harassment, medical incapability, range of reasonable responses, Unfair dismissal, unfavourable treatment, work related anxiety
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