When businesses have an employee on long term sick leave, they sometimes consider getting a replacement to cover the work. If the employee off sick has a long-term health condition that may be regarded as a disability and/ or if they have at least 2 years’ service (under current rules), employers should ensure they tread carefully when getting a replacement as they could risk an unfair dismissal and discrimination claim.
In Wainwright v Cennox [2023] EAT the employee was on long term sick leave with cancer and during her absence her employer appointed another employee to her role without consultation. The employee only discovered this on LinkedIn but was assured by HR her position was unaffected and they did not want to upset her – she later found out the appointment was permanent.
In discussions about her return to work she was given a new job description. Feeling she had been demoted, she raised grievances which were not resolved so she resigned and issued various claims including constructive unfair dismissal and discrimination.
Tribunal decisions
The employment tribunal upheld the discrimination claim but dismissed the constructive unfair dismissal claim saying the resignation was due to a mistaken belief of demotion.
The employment appeals tribunal allowed her appeal holding the tribunal should have considered whether the discriminatory acts amounted to a repudiatory breach of the implied term of trust and confidence and if so whether they materially contributed to the resignation. The case was remitted back to another tribunal where the employee was successful and was awarded substantial damages.
Key takeaways
This case shows how claims can be connected, with one supporting the success of another. Employers should note the risks of hiring a permanent replacement for staff on long term sick leave. A temporary replacement is acceptable, but clear communication is essential so the employee understands their role remains secure until they are fit to return.
How we can help
We strongly recommend you contact the Employment Service Helpline on 0370 840 0234 to speak with one of our experienced employment advisers for specific advice on managing long-term ill health absences.
Not yet an NFU Employment Service member? Join today and take advantage of a host of guidance to support you navigating the complex world of employment law.
You'll also receive access to a wide range of member benefits – with discounts ranging from cars to health insurance.
For more information, call us on 0370 840 0234 or email us at [email protected]