What is the legal development?
A couple of cases highlighting the difficulties with asking too much or too little.
In one recent case the EAT held that writing to an employee who was off sick for work-related stress, about concerns that were not serious or urgent, was a repudiatory breach of the employment contract.
On the other hand, a failure to make sufficient enquiries may raise other risks. The fatal accident enquiry into the Glasgow refuse truck driver, heard that the driver had a history of fainting which he hid from the employer, with fatal consequences.
What does this mean in practice for employers?
When cases like this are combined with the restrictions on asking health questions during the recruitment process (under the Equality Act 2010), and ever increasing concern about protecting personal data, employers are understandably more cautious about pursuing enquiries. There can be a reluctance to raise sensitive issues with employees, perhaps because they are off sick with stress, or the information is particularly sensitive and personal and those involved feel awkward.
However, where serious and urgent issues do arise, either for a business itself or where there is duty of care to others who may be impacted (e.g. health and safety of work colleagues, clients or members of the public), employers should be making appropriate and full enquiries. The law does not stop them.
Raising sensitive issues with employees can be tricky, particularly where the culture of the organisation makes it perhaps more reluctant to question what may be seen as private life and personal issues. However, clarity about the business rationale for the questions, sensitivity and open communication when handling the process, mean the businesses can and should ask the right questions.