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Not everyone likes birthdays; the attention, questionable gifts or the reminder that time is marching on. Various news outlets have run with the headline that one employee disliked birthdays so much that she successfully brought a claim in the employment tribunal that the sending of an unwanted birthday card by colleagues amounted to harassment. It was her birthday and, as the song goes, she’ll “cry if she wants to”.

Critically, it was the sending of any card that formed part of the harassment, not the content of the messages or anything about the particular card that was sent. Many commentators have ridiculed the judgment and, when reading the headline, it does seem a little harsh. Are the tribunal attempting to prohibit office birthdays? Will there be a clamp down on cake?!

What is harassment?

Harassment occurs when one person engages in unwanted conduct that has the purpose or effect of either violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person. Importantly, to amount to harassment this conduct must relate in some way to a protected characteristic of the person subjected to the unwanted conduct. These protected characteristics are listed in the Equality Act 2010 (EqA 2010) and are age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation. The harasser does not need to know that they are engaging in harassing behaviour.

The facts of Toure v Commissioners for HM Revenue and Customs

The Claimant, Ms Toure, was employed by HMRC as a Consumer Service Consultant and Administrative Officer working in the Croydon Office. She is a French National of African Origin and a practicing Muslim. Her employer knew at the commencement of her employment that she suffered with asthma and Microprolactinoma, a condition where a tumour in the pituitary gland can lead to hormone changes causing migraines and headaches aggravated by stress. It was undisputed that these conditions amounted to a disability for the purpose of the EqA 2010.

Issues began during Ms Toure’s first week of employment when she attended a training session on telephone handling, along with a number of other new starters, Ms Toure alleged that one of her colleagues, in response to a question from the trainer about what makes people hard to understand on the telephone, that the colleague pointed to her and replied, “pronunciation and accent”. It was also alleged that the same colleague then made a series of further offensive and discriminatory remarks directed at Ms Toure including on one occasion, when Ms Toure mentioned that she was Nigerian, the same colleague responded “it’s a good thing that you don’t look like one.”

HR arranged for a meeting to take place between Ms Toure and the colleague in question, where the notes record that an apology was given to Ms Toure for the remarks made although in evidence before the Tribunal the colleague stated he only apologised because, “in everyone’s eyes he was already guilty, because when a female person complains the male is always the guilty person straight away”.

It seems therefore that there was a toxic working environment exemplified not only by the above but from a number of further complaints made by Ms Toure including being told that she had a “sexy voice,” that her head scarf was referred to as “this thing on top of your head,” and that when she raised an 11 page grievance detailing examples of race discrimination the respondent demanded she withdraw her grievance before a permanent solution would be considered.

In relation to birthdays, Ms Toure’s line manager kept a record of his team’s birthdays and congratulated her on her birthday in August 2020 in the team meeting that happened to fall on that date. Ms Toure politely thanked the team for their kind wishes but stated that she did not want to make her birthday known for “personal reasons.” Her name was therefore removed from the birthday list.

Ms Toure subsequently moved to a new team in response to the complaints that she had made in her grievance and reported to a new line manager, Ms Noble. Unfortunately, her wish to keep her birthday confidential was not communicated to Ms Noble.

From 30 June 2021 Ms Toure was absent on sick leave due to work related stress and asked that she only be contacted if it was essential and by email only as contact with colleagues made her emotional and exacerbated her symptoms of stress. Over the month that followed Ms Noble contacted the claimant 11 times before the infamous birthday card was sent.

The tribunal held that, the first birthday congratulations did not amount to harassment as, “marking birthdays is not an unusual or inherently offensive practice” and her then line manager did not know that she did not celebrate her birthday. However, Ms Noble contacting the claimant repeatedly in the early part of her sick leave did about to unwanted conduct of which a birthday card sent by Ms Noble was one example.

Ms Toure had asked for correspondence to be kept to a minimum, and to be by email only, the birthday card was therefore not only an unnecessary communication by post, but was contrary to her earlier request that her birthday not be marked.

As Ms Toure was absent due to work related stress which was exacerbated by contact from her employer and worsened the symptoms of her disability, the tribunal considered there to be an “inherent causal relationship between the conduct complained of, and the Claimant’s disability.” It was therefore impossible to separate the treatment (continuing to contact with the Claimant repeatedly despite being asked not to do so) from the fact that the Claimant was absent for a reason which was linked to her disability. The tribunal considered that the effect of the repeated contact was to create a hostile and intimidating environment for her related to her disability (the legal test for harassment).

The tribunal acknowledged that some of the correspondence from Ms Noble was necessary in insolation, but the volume of messages and phone calls was not reasonable. The tribunal rejected arguments that HMRC was acting in accordance with its duty of care and found that their duty would have been more appropriately discharged by respecting Ms Toure’s wishes.

The facts of the case are complex, and the judgment spans 93 pages, which may be why many news outlets have focussed on the attention-grabbing headline about the birthday card but more importantly, this is a case about the level of and necessity for contact with employees when they are absent on sick leave.

In this blog we have focused on the claim that the sending of the birthday card amounted to harassment, however, some of Ms Toure’s complaints for harassment related to race and victimisation also succeeded.

Take aways for employers

  • Have a communication plan – it may be beneficial to employers to have a communication plan with an employee on sick leave, detailing when the employer will contact them requiring an update. Managers must understand that this is not a one size fits all approach and that the circumstance of the sick leave and the impact on the employee’s health must be considered.
  • Training – employers should remind staff that a potential harasser does not necessarily need to intend to cause harm for harassment to have taken place. The focus is on the purpose or effect of the unwanted conduct.

For the avoidance of doubt, birthday cake is very much encouraged in the Edwin Coe Employment Team.

Should you require advice in relation to any of the matters raised in this blog, please contact Linky Trott or any other member of the Employment team

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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