Source: People Management Magazine, February 2025

Maintaining an appropriate level of contact with employees on sick leave is crucial. It helps employers understand their situation, provide support, and make necessary workplace adjustments. However, employees also need time to recover, so striking the right balance is essential. The case of Miss Crette Berry v Anglian Water Services Ltd demonstrates how excessive or inappropriate contact can lead to legal consequences.

The Case: Miss Berry v Anglian Water Services Ltd

Miss Berry, a contact centre agent, worked a flexible schedule of 37 hours per week. Shortly after starting her job, she requested a flexible working arrangement to help manage her menopausal symptoms and stress.

The day after submitting her request, she was off sick for gynaecological reasons. Following an occupational health assessment, it was confirmed that she had endometriosis, severe brain fog, abdominal pain, hot flushes, and fatigue. Her employer agreed to adjust her schedule to a rolling pattern of 30 hours per week over four weeks.

However, Berry continued to experience absences due to her health conditions. After reaching an absence trigger point, she attended an attendance support meeting where she disclosed she also had depression. Shortly afterwards, she began a long-term sickness absence and later underwent a hysterectomy. Despite knowing about her surgery and her need for recovery, her manager repeatedly contacted her via WhatsApp about another attendance meeting. Eventually, Berry resigned and took her case to an employment tribunal, claiming failure to make reasonable adjustments and harassment related to her disability.

Employment Tribunal Decision

The tribunal ruled that:

• Berry was disabled due to her endometriosis, menopause, and depression.

• Her reasonable adjustments claim was dismissed.

• She had been harassed due to excessive contact after her surgery.

Harassment occurs when an employee is subjected to unwanted conduct related to a protected characteristic (in this case, disability) that violates their dignity or creates an intimidating or distressing environment. Although the employer’s intent was not to humiliate Berry, the tribunal found that the contact negatively impacted her recovery.

Key Takeaways: Dos and Don’ts  Do:

✔ Maintain Appropriate Contact – Keep in touch with employees to offer support and understand their needs but in a considerate manner.

✔ Respect Medical Leave – Allow employees adequate time to recover, especially following surgery or significant treatment.

✔ Be Flexible and Adaptive – Every situation is different, so tailor communication accordingly.

✔ Use the Right Channels – Opt for formal communication channels rather than informal messages unless the employee prefers otherwise.

✔ Document Communications – Keep records of interactions to ensure transparency and fairness.

Don’t:

✖ Overwhelm Employees – Avoid excessive or intrusive contact, particularly when they are in recovery.

✖ Ignore Medical Advice – Consider medical reports and recommendations before making contact.

✖ Pressure Employees to Return – Contact should not feel like an obligation to return to work before they are ready.

✖ Assume One Approach Fits All – Different conditions and personal circumstances require different levels of engagement.

Final Thoughts

Employers must strike a careful balance when communicating with employees on sick leave. While it is essential to provide support, excessive contact—especially during critical recovery periods—can lead to legal consequences. By adopting a compassionate, flexible, and structured approach, employers can ensure they meet both legal and ethical obligations while fostering a supportive work environment.

Many employers mistakenly believe that when an existing employee is promoted, they can be placed on a probation period similar to that of a new hire. This is not the case, and failing to handle the situation correctly can lead to legal and procedural missteps. Here’s what you need to know about managing promotions, performance, and employment rights.

The Myth of the “Internal Probation Period”

Some employers refer to an “internal probation” when an employee is promoted. However, there is no legal basis for such a concept. If an employee has been with the company for a significant period and has successfully passed their initial probation at the beginning of their employment, their length of service and employment rights must be considered. Promotion indicates that the individual has either performed well in their previous role or successfully competed for the new position. It should not be treated as a fresh start with new employment terms.

Employment Rights and Length of Service

When an employer decides that a promoted employee is not performing as expected, they cannot simply terminate employment under the guise of a probation failure. The key factors to consider are:

• Employees with More Than Two Years of Service: If the promoted employee has been with the company for over two years, they have unfair dismissal protection under UK employment law. Dismissing them without a fair process—such as structured performance management or disciplinary procedures—could lead to claims of unfair dismissal at an employment tribunal.

• Employees with Under Two Years of Service: Even if the employee has been with the company for more than six or nine months for example but less than two years, dismissing them without a fair process could still present risks. If they have already passed their initial probation period (typically three to six months), an employer must follow proper procedures, especially if they have internal policies or will need to adhere to ACAS guidelines apply.

• NEW DAY ONE RIGHT  – COMING UP IN 2026 – UNDER CONSULTATION: the two year service period will no longer apply. Each employee will have day one right and will be able to claim unfair dismissal at any point.

How to Manage Performance After a Promotion

Rather than treating promotions as a new employment trial, employers should focus on supporting employees in their new roles. This includes:

• Structured Performance Support: Providing training, mentoring, and coaching to help the employee meet new expectations.

• Regular Performance Reviews: Scheduling meetings to discuss progress, address challenges, and set clear goals.

• Action Plans: If performance issues arise, creating a structured improvement plan with measurable objectives and timelines.

• Reversion to Previous Role: If the new role is not a good fit and the previous position is still available, discussions can be held about reverting to the former role – to be mutually agreed. However, this might involve a reduction in salary if the promotion came with a pay increase.

• Trial Period Before Formal Promotion: Employers can agree to a temporary trial period (without changing employment terms officially) before making the promotion permanent. This must be mutually agreed upon and documented.

Ensuring Compliance and Best Practices

Employers should have clear policies in place regarding promotions and performance management. If no internal policy exists, they should follow ACAS statutory guidelines to ensure fair treatment. Ignoring these processes can result in grievances, reputational damage, and legal claims.

Expert HR Support and Advice

If you need guidance on managing employee promotions, performance issues, or compliance with employment law, I can help. Whether it’s reviewing policies, creating templates, training managers, or supporting meetings, I provide tailored advice to navigate these challenges effectively. Reach out for expert HR support to ensure you handle promotions correctly while protecting both your employees and your business.