Sending a card to a colleague who has said they do not want their birthday celebrated could count as harassment, an employment tribunal has ruled.
Marking a staff member’s anniversary could count as ‘unwanted conduct’ if they don’t want to commemorate it, a judgement said.
The conclusion came in the case of a tax worker who has successfully sued HMRC after bosses sent her a birthday card when she expressly said she didn’t celebrate it.
Kani Toure was off sick with work-related stress when she ‘clearly explained’ she wanted correspondence to be kept to a minimum and via email, the tribunal heard.
However, in the month that followed she was contacted ‘more than once every other day’, before being sent a birthday card despite informing her boss the previous year she didn’t want a card.
Ms Toure – who suffers from a pituitary gland tumour which is exacerbated by stress – is now in line for compensation after winning several claims of race and disability harassment and discrimination against the government department.
A judge concluded the card and ‘repeated contact’ while off sick was harassment, and added that their duty of care would have been ‘more effectively observed by complying with her expressed wishes’.
The tribunal in south London heard Ms Toure – who is a French national of African origin and Muslim – started working as a customer service consultant at the Croydon office in October 2019.
In March 2020, due to Covid, she started working from home.
In July 2020 after difficulties claiming utility expenses, she told boss Hugh Henderson via email she had been discriminated against, ‘mostly because of my foreign accent and origin’, although this was ignored.
Then, on Ms Toure’s first birthday during her time working there – on August 2, 2020 – Mr Henderson mentioned in a meeting that it was her birthday.
‘He had a practice, at that time, of keeping a list with the birthdays of each member of his team on it,’ the tribunal heard.
‘His evidence was that he would use the list to wish members of his team a happy birthday, and if it was a ‘special’ birthday he would arrange a card from the whole team.
‘His evidence was that more than half of team leaders would have done similar things at the time.’
The next day, Ms Toure emailed him saying although it had been ‘very kind’, she wasn’t celebrating it for ‘personal reasons’ and asked her details be taken off any birthday list, which they were.
Mr Henderson apologised and explained that he would remove the Claimant’s birthday from his list.
By September 2020, the tribunal heard Ms Toure felt she was being ‘left out’ of training opportunities compared to her colleagues and made an informal complaint which she later said should be treated as a grievance.
In November 2020 she submitted a formal 11 page long grievance which contained ‘a number of allegations against a range of colleagues’.
As a result, she was transferred to HMRC’s Canary Wharf office on a temporary basis for six months. It was heard she was told she would have to withdraw her grievance if she wanted the transfer to be made permanent.
In June 2021, she saw occupational health, where a report found the tumour caused her pituitary gland to produce too much of a hormone called prolactin which which could trigger migraines.
The panel heard the report said she suffered from symptoms of stress, anxiety, migraine, vertigo, loss of weight, poor sleep and low mood.
She was subsequently on sick leave from June 30, 2021.
The tribunal heard Ms Toure asked that correspondence be only done if ‘essential’ – and be conducted by email, as interactions made her ’emotional’.
However, in the month that followed, she was sent 11 emails to check she was ‘alright’ as well as a birthday card.
As Ms Toure had transferred to a different team with a new manager, Mr Henderson had not had the chance to brief her new boss about her birthday wishes.
As a result, she was sent a birthday card in August 2021 – something that the panel heard ‘always’ happened to members of her new team.
The panel heard this ‘repeated contact’ had ‘exacerbated’ her symptoms.
Ms Toure remained absent from work until she was sent a letter in November 2021, warning her that she faced ‘formal steps regarding her sickness absence’.
Ms Toure then took HMRC to the tribunal, making over 20 allegations of race and disability harassment, as well as discrimination and victimisation.
Ten of her claims were successful.
Employment Judge Adam Leith said: ‘[HMRC]’s conduct, in repeatedly contacting [Ms Toure] during the early part of her sickness absence, was unwanted.
‘She had asked for correspondence to be kept to a minimum, and to be by email only.
‘While she could have been more proactive in reporting her absence, she had clearly explained why she wished for correspondence to be kept to a minimum.
‘The birthday card was also unwanted, in the sense that she had told Mr Henderson that she did not want her birthday to be marked.’
The judge said the ‘repeated contact’ created a ‘hostile and intimidating environment’ for her.
‘[Ms Toure], having asked [HMRC] to keep correspondence to a minimum, was then contacted 11 times in a three-week period – on average, more than once every other day.
‘It is in our judgment impossible to separate the treatment (continuing to contact Ms Toure repeatedly despite being asked not to do so) from the fact that she was absent for a reason which was linked to her disability.
‘[HMRC]’s explanation for the treatment was that (in essence) they had a duty of care to [Ms Toure] and had to check on her welfare.
‘We have some doubts about that.
‘In the circumstances, [HMRC]’s duty of care would on the face of it have been more effectively observed by complying with her expressed wishes.’
The judge said Ms Toure had been victimised by Mr Henderson when her complaints were ‘ignored’ and said the offer of a permanent transfer in exchange for withdrawing her grievance amounted to race harassment.
Ms Toure also won a claim of disability harassment after an HMRC report claimed her complaints were ‘baseless’ and ‘made as a result of the medication she was taking for her tumour’.
She also won a claim of disability discrimination after being told ‘formal action’ would be taken about her continuing sickness absence.
A remedy hearing will take place at a later date to decide her compensation.