Scenario
Your employee is on long-term sick leave with cancer. While they are away, the business shifts. Another colleague has been confirmed in a role that overlaps with theirs. HR must decide how much to share and how to phrase it. Too much candour risks distress. Too little candour risks litigation. So, what is the balance?
The Employment Appeal Tribunal (EAT) has answered in Wainwright v Cennox plc.
What happened?
Ms Wainwright, a long-serving employee, went off sick during chemotherapy. In her absence, the employer offered her colleague her ‘Head of Installations’ role permanently. The employer hoped both could return as ‘Heads’ later but did not tell her that.
She only discovered the appointment through LinkedIn. HR reassured her that the appointment was temporary. Later, Wainwright was removed from the organisation chart. Her grievance was delayed and mishandled. Feeling undermined, she resigned. The tribunal upheld part of her claim and, after an appeal and rehearing, awarded her £1.2 million.
What is the law?
Section 15 of the Equality Act 2010 makes it unlawful to treat someone unfavourably because of something arising from their disability (such as sick leave). Employers can defend themselves if the treatment is proportionate to a legitimate aim (the ‘objective justification’ defence). Constructive dismissal requires a repudiatory breach of contract, often a breach of mutual trust and confidence. Even then, if the employee ‘affirms’ the contract by carrying on too long, they may lose the right to resign. A ‘last straw’ can revive the breach if it tips the balance.
What did the court decide and why?
The employment traibunal (ET) had found Cennox misled Ms Wainwright during her absence, trying to soften the blow by pretending her colleague’s appointment was temporary. That was unfavourable treatment because of her disability.
But the ET said she resigned only because she wanted a ‘Director’ title. The EAT said this analysis was inadequate. The tribunal should have considered whether the misleading conduct and poor communication were fundamental breaches of contract. It should also have asked whether those breaches contributed to her resignation, even if they were not the sole reason. By failing to run that analysis, the ET wrongly dismissed her constructive dismissal claim. The EAT therefore remitted the case to a fresh tribunal, which later awarded £1.2m.
The message to HR? When someone is away with a serious illness, handling organisational change with half-truths is risky.
What should you do?
- Consult absent employees about role changes, even if difficult.
- Avoid softening the facts. Candour now beats litigation later.
- Document business reasons clearly if roles must shift.
- Keep communication consistent between HR, managers and directors.
- Progress grievances promptly and independently.
- Be wary of ‘organogram surprises’: transparency matters.
What is the takeaway?
Misleading an employee on sick leave may feel kind but risks breaching trust and costing seven figures.
Question
How does your business keep sickness-absence updates frank without losing empathy?
