Contacting a Disabled Employee During Sickness Absence

Toure v Commissioners for HM Revenue and Customs

A birthday card sent to a worker on sick leave contributed to a “hostile and intimidating environment” amounting to harassment under the Equality Act, a Croydon tribunal has ruled.

While on leave for work-related stress, which was exacerbating the effects of a pituitary gland tumour, Ms Toure was repeatedly contacted by her employer, HMRC, despite requesting minimal contact, that correspondence be by email only and stating that she did not want her birthday to be marked . She was contacted 11 times in a three-week period, amounting on average to more than once every other day.

Overall, Ms Toure brought over 20 allegations against HMRC in the Employment Tribunal.  The alleged excessive contact formed part of her complaints  The Tribunal upheld claims of race and disability harassment, discrimination, and victimisation.

Harassment under the Equality Act is established if a person engages in unwanted conduct related to a relevant protected characteristic (e.g. disability), and the conduct has the purpose or effect of (a) violating an individual’s dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.

In this case HMRC defended its actions stating they had a duty of care to Ms Toure and “had to check on her welfare”, but Employment Judge Leith said: “We have some doubts about that. In the circumstances, the respondent’s duty of care would on the face of it have been more effectively observed by complying with her expressed wishes.”

Considerations

This case is a reminder to employers that in cases of sick leave, particularly when attributed to work-related stress, employers should adopt a consistent and reasonable approach to sick leave and must ensure they provide adequate support without overstepping boundaries having regard to company policy and case-by-case consideration. The steps taken by the employer should be proportionate and it should make reasonable adjustments to its normal processes where the employee is put at a disadvantage because of their disability.   This becomes increasingly important in absences due to work-related stress where low levels of contact have been requested, and employers must walk a careful line between undertaking business matters (e.g. keeping the employee updated and carrying out sickness absence procedures), and preventing unwanted contact.

Action Points

1. Create a framework – sickness absence management policy: Having such a policy in place will establish a foundation for the typical approach to communication during sick leave and outline clear and transparent touchpoints, such as when the employer would typically contact absent workers with relevant business updates, and how they will keep in touch during periods of longer-term sickness absence. Creating a framework means that companies can make specific adaptations where necessary, for example in a case of work-related stress, and help employees understand that some level of contact will be necessary throughout their leave.
2. Managing expectations: The employer should also gain an understanding of the worker’s expected levels of contact and whether they require additional adjustments, especially where there is a disability under the provisions of the Equality Act 2010. For example, in cases where the employee has an illness which could be impacted by unwanted contact, the worker may wish to specify alternative methods or times of contact.  The business and absent worker should agree on a clear timetable of contact that aligns with company policy and makes reasonable adjustments where required which should then be outlined in writing and made available to the employee.   Businesses should ensure that any communication plan has considered the situation of the worker along with available medical advice (e.g. an occupational health report).
3. Training: Through training employees can be informed 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. An individual can be named as a respondent in a harassment claim and held personally liable for compensation awarded following a successful claim.

If you require any assistance with review of or preparation of a sickness absence management policy or require any internal staff training on any topic including harassment in the workplace, please get in touch with Rollits Employment Team.