The Times Online have reported that HMRC has been held liable for harassment for sending one of its employees a birthday card! You would hope that something as seemingly innocent as sending a card to an employee, wishing them a ‘happy birthday’, could not fall foul of employment law. However, on the facts of this case, it did. In Toure v HMRC, the Claimant went off sick with stress, claiming disability and race discrimination. Whilst she was off sick, she asked her then-manager to keep contact to a minimum. In particular, she asked that she not be sent a birthday card (as was the employer’s custom). A different manager, who was unaware of this instruction, sent her a birthday card the following year. This action formed the basis of one of her many complaints of disability and racial harassment.
It’s important to note that it wasn’t just the birthday card. The Claimant’s manager had also emailed her eleven times in a month. Clearly, he was not keeping contact to a minimum. The tribunal found that the constant contacts from her employer (including the birthday card) amounted to harassment. The contact was unwanted, and she had expressly said that she didn’t want it.
There are important questions raised by this case:
- How does an employee’s request for minimum contact co-exist with the employer’s need to manage absence? It is not likely to have been reasonable for the employee to expect no contact whatsoever whilst she was off sick.
- Although this case concerned race and disability discrimination, does it indicate a potential age discrimination issue with the sending of birthday cards at work? If an employee is sensitive about their age, then receiving a card from work could amount to unwanted conduct – especially if the card is ‘humorous’ and refers to age. A bland birthday greeting is unlikely to give rise to a serious risk of age discrimination (it’s unlikely for an employee to be able to successfully argue that it was reasonable for them to be offended), but if the employee has specifically asked not to receive one, or if the message included in the card could be perceived as offensive (even if the sender didn’t mean it to be taken this way), then we are not a million miles away from age-related harassment.
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