Another foot in the grave of workplace common sense? (UK)David Whincupon June 28, 2024 at 3:24 pm Employment Law Worldview

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“HMRC boss sending worker unwanted birthday card was harassment“, said the Times Online yesterday, surely a second nailed-on candidate for 2024’s No Good Deed Awards after a similar allegation earlier this year in relation to offering an older worker a chair.

Needless to say, there is somewhat more to the story than that, so those managers increasingly tempted just to give up on the whole people-management thing should hang on in there for a little while yet. Key to that advice is that the harassment in question was not on grounds of age as one might fear, but disability and race instead. Ultimately, the fact that it was a birthday card was broadly (indeed, wholly) immaterial. A much more accurate by-line would have been “Boss sending worker unwanted birthday card is tiny part of bigger problem”.

Ms Toure was having a bad time in her employment with HMRC. She contended that to be a product of her disability and race and went on sick leave with stress. During that time, she asked to have only the minimum necessary business contact from HMRC while she got herself together. In addition, she had asked her then manager the previous year not to send any more birthday felicitations, however well-intended it was and notwithstanding that a significant proportion of HMRC team leaders apparently do the same. She thanked him for what she acknowledged to be a kind thought, but as a rule chose not to mark her birthday and so could do without the card, please.

Despite these requests for minimum contact, the manager had then emailed her eleven times in a month to check whether she was okay, and a new manager who had not been told of Toure’s views on birthday cards waited patiently for the relevant date and then sent her another. The Times reports no finding by the Employment Tribunal that any of that contact had been made maliciously or in the knowledge that it would be unwelcome, but as we know, harassment does not require ill-intent, only the fact of distress and some connection with a protected characteristic. The ET found that those constant contacts from her employer amounted to harassment of Toure – they were clearly unwanted and she said that they had caused her an adverse emotional reaction. The Times report does not indicate how the ET got from there to satisfying the additional requirement that the upsetting conduct should relate to Toure’s race or disability, but it may be assumed that this was because her wishes for minimum contact were given in the context of an absence she said was caused by discrimination on those grounds. Either way, says the report, Toure’s managers had a duty to comply with her preferences regarding correspondence being kept to a minimum and by email only.

Taken at face value, this puts managers trying to do the Right Thing in a terribly difficult position. All HR managers will be familiar with the employee who in times of tension opts for the latter end of the “fight or flight” option, says he is too sick even to talk about it and then complains later about insufficient pastoral contact during his absence. They will have seen also how a failure to follow normal little courtesies over that period (birthday cards, invitation to works socials, etc.) can suddenly be turned into some sort of cold-shouldering or victimisation. They will know also of the employee who says he doesn’t want any contact from his employer while he is off with stress, but in fact really needs it, not least to try to establish a dialogue as his only remaining chance of fixing whatever ails him at work and so saving his job.

Any suggestion of an absolute duty on bosses to comply with an employee’s wishes as to content, volume and medium of employer contact while he is off sick would therefore have to be doubted. The issue here was not the birthday card by itself or the odd check-in to make sure Toure was okay. It was the sheer number of contacts, effectively one every other day, in the face of Toure’s express (and in the circumstances, not wholly unreasonable) wishes to the contrary.

The absence of malice in the falling between the cracks of the previous year’s request in relation to birthday cards did not prevent that conduct being harassment at law. However, it should very much affect the level of compensation for injury to feelings which Toure can legitimately claim to have suffered as a result. The degree of real upset which she can reasonably have taken from such obviously well-intended steps (last year she had accepted it as being a nice gesture) must surely be limited. The finding here that the conduct amounted to harassment means that she has already got over the hurdle of showing that it was reasonable to be upset to some underlying extent, but we are surely heading down a very difficult path if it is accepted at the remedies hearing that trying so obviously to do the decent thing in this way should generate any injured feelings award of substance. That said, of Toure’s twenty separate discrimination allegations, half were upheld, so we may never know exactly what price HMRC pays for this particular kind thought.

Therefore this case is not what the headline suggests, a finding that an unwelcome birthday card is age discrimination. But on other facts, it could have been – given the increasing popularity of “ironic” birthday cards (in this context, shorthand for “gratuitously rude and offensive”), how hard would it be for someone with an express aversion to ageing publicly to claim some level of discontent? First time around, perhaps difficult to be too upset about such a common form of greeting. Thereafter, receiving annual “jokes” around your assumed gradual loss of fitness, memory, hearing, hair, etc. despite a courteous request to the contrary begins to look a bit more pointed. One day that Times headline might well live up to its teasing promise, but just not this time.

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