Barring out bonanza? Workplace group chats & sick leave - how to strike a balance
Posted on 9th October 2023 at 17:03
The recent claim of Mark Brosnan vs Coalo Limited led to mainstream media headlines such as “plumber wins enormous £130,000 payout from employers after being snubbed from group chat” (GB News) and “excluding colleagues from group chats is discrimination, rules judge” (Telegraph). For readers moving onto the fuller report, and finding out that Mr Brosnan was on sick leave at the time, clouds of disbelief may have quickly gathered. Isn’t it entirely natural to leave ill employees alone, for fear of making the illness worse?
For employers wondering if this could ever happen to them, let’s take a closer look at the tribunal judgment.
Mr Brosnan had had two periods of absence from work, in February 2020 and April 2021. The latter was partly attributable, in his opinion, to failure to implement occupational health recommendations that followed the former. He submitted a grievance. When it was addressed in August 2021, he found out that he had been excluded from a WhatsApp group because of his sickness absence. The group had been formed to “communicate important information” to employees, including health and safety information.
Sensing that the grievance had been kicked into touch, Mr Brosnan resigned in January 2022. He successfully submitted claims for constructive dismissal, three types of disability discrimination, victimisation, failure to pay contractual sick pay and holiday pay, and unauthorised deduction from wages.
The Employment Judge condemned the WhatsApp group exclusion as an “unfavourable act”, falling within the scope of the main disability discrimination claim. It was noted that some employers did not contact employees at all during sickness absence for fear of exacerbating their ill health, or disturbing them with work related matters at a time when they should be recuperating, “but that cannot be presumed”. In the absence of evidence put forward by Coalo, the judge was “not satisfied there was any justification for this”.
How come there was an absence of evidence? Here’s why. Coalo did not respond to the unfair dismissal claim and did not attend the trial, leaving Mr Brosnan with a free ride. Given that Coalo’s ultimate corporate owner was Hounslow Council, solidly Labour with a presumed well equipped HR function, this was curious. A balance sheet negative equity balance of £1¼ million as at 31 March 2022 might be of future relevance…
Now, back to that £130,000 award. A careful examination reveals that there was no “barring out bonanza” after all. The Whatsapp exclusion was one of seven elements of an award of £15,000 for injured feelings arising from disability discrimination and victimisation. The bulk of the award reflected the fallout from Mr Brosnan’s unfair dismissal and unlawful deductions.
So much for the clickbait headlines? Up to a point. But Coalo could have spared itself some financial detriment – and media ridicule – if it had had a policy in place about when it would be right to contact employees on sickness absence about work related matters. Or indeed if it had reached out and asked Mr Brosnan if he preferred to be included or omitted.
What is your preferred policy on sickness absence contact? Do you have one, or would you like one reviewed? Might you have such an employee with whom you would like to break the silence in a sensible manner? Get in touch for any necessary advice. Call David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
Tagged as: constructive dismissal, disability discrimination, employment tribunal, harassment, injured feelings, sickness absence, unauthorised deduction, unfavourable act, workplace policy
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