How Much is Too Much? – Contacting Employees on Sick Leave

Senior Associate, Claire Treacy.

Knowing how much contact to have with employees who are on sick leave can be difficult. Keeping in touch with employees during their sickness absence is important so they don’t feel unsupported and so the business does not lose contact with them. However, a recent case in the Employment Tribunal against HMRC shows the importance of balancing this with too much contact which can amount to unlawful harassment.

Ms Toure v Commissioners for His Majesty’s Revenue and Customs

Facts:

The Claimant, Ms Toure, was a Customer Service Consultant/Administrative Officer employed at HMRC’s offices in Croydon since 2019. Ms Toure is a Muslim, French national of African origin who has a non-cancerous tumour. This tumour meant that she was a disabled person for the purposes of the Equality Act 2010.

Ms Toure’s first line manager had a practice of keeping a list with the birthdays of each member of his team on it. 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. However, in 2020 on Ms Toure’s first birthday whilst working for HMRC she asked for her name to be removed from the birthday list because she said she did not celebrate or acknowledge her birthday. Her former manager agreed to this.

On the 30th June 2021 Ms Toure went on sick leave with work related stress. The following contact then took place:

• On 1 July Ms Toure’s manager contacted her via email as Ms Toure had not told anybody that she was not coming into work.
• On 2 July Ms Toure emailed her manager to inform her that she was still unwell. She indicated that she would get a doctor’s note in the next week if her sickness continued. She asked that further correspondence be kept to the essential, and be conducted by email, as interactions with HMRC made her emotional.
• On 2 July the manager responded asking Ms Toure to get in touch by 10.30am on Monday 5 July if she was still unable to return to work. The manager explained that if that was the case, she would then call Ms Toure to see how she was doing and offer further support. The manager provided Ms Toure with the details of the Employee Assistance Programme.
• Ms Toure did not make contact with her manager before 10.30am on 5 July. Therefore, later on 5 July her manager attempted to call her, and then sent her a text message. Ms Toure then emailed her manager to say that she was still unwell. Her manager replied, reiterating that Ms Toure should contact her by 10.30 in the morning if she was unable to work. She noted that Ms Toure would need a doctor’s note by 7 July if she had not returned to work by then.
• On 6 July Ms Toure emailed her manager at 10:20am to say that she was still unwell. Her manager responded. She asked Ms Toure about how her symptoms were and whether they had started to improve. She also asked Ms Toure to forward a picture of her doctor’s note when she received it. Later that day, Ms Toure emailed her manager her fit note.
• On 9 July the manager emailed Ms Toure. She said: “I am just following up on my email reply from Wednesday, as I have not heard from you. How are you doing? Do you still have the same symptoms, or have they started to improve? Is there anything further that I can support you with?”
• On 12 July the manager emailed Ms Toure (on her work email address) regarding the recommendations made in her Occupational Health report.
• On 14 July the manager emailed Ms Toure’s personal email address. She said: “I have tried to phone your mobile number but there is a recorded messaged advising you are not accepting calls. I have not heard from you since your email on Tuesday 6/7/21, and I would like to know how you are doing. I have emailed a few times and did advise I would try to call you. Can you please let me know how you are doing? Have your symptoms improved? Are you feeling any better? I will try to call you again tomorrow as I would like to talk to you, to see how you are. As always, please do not hesitate to contact me if I can help in any way or offer any further support.”
• On 20 July the manager emailed Ms Toure asking if she would be returning to work, as her fit note expired on the following day. Ms Toure responded on the same day forwarding a further fit note.
• On 20 July HMRC’s HR team also wrote to Ms Toure informing her that her period of full Occupational Sick Pay would expire on 23 August 2021, and setting out the dates on which half pay and Statutory Sick Pay would end.
• On 21 July the manager emailed Ms Toure acknowledging receipt of the fit note. She explained that she was supposed to have had an update on pay and asked Ms Toure to telephone her to discuss it further.
• On 23 July the manager emailed Ms Toure again. She set out the information regarding sick pay. She explained that she was going on leave for three weeks, and who Ms Toure’s point of contact would be in her absence.
• On 2 August Ms Toure was sent a birthday card from management because Ms Toure’s request for her name to be taken off “the birthday list” had not been passed to her new manager.
• On 2 August Ms Toure’s new point of contact emailed her regarding her continuing absence. He asked her if she was feeling better and if there were any adjustments that would assist her to return to work, and also reminded her about HMRC’s employee assistance programme.

Ms Toure’s claim:

Ms Toure claimed harassment on the grounds of race and disability. She said the effect of the repeated contact from HMRC during the above period was to create a hostile environment for her and that this was related to her disability and/ or race.

In terms of harassment on the grounds of disability, her evidence was that stress exacerbated the symptoms of her tumour (and vice versa). HMRC’s evidence was that they had a duty of care towards Ms Toure, and consequently had to get in touch with her to ensure that she was alright.

In terms of harassment on the grounds of race, her evidence was that she did not want to be on “the birthday list” because she did not recognise her birthday and so she should not have received a birthday card. HMRC’s evidence was that Ms Toure’s former manager had forgotten to tell her new manager about this and that was the reason a birthday card was sent to her.

Judgment:

The Employment Tribunal had to decide whether the 11 attempts to contact Ms Toure between the 1st July and 2nd August, as well as sending her a birthday card amounted to harassment on the grounds of her disability.

The Tribunal determined that:

1. The conduct was unwanted. Ms Toure had clearly said that she wanted her name removing from the “birthday list” and that she wanted to keep contact with HMRC to a minimum and to be over email whilst she was on leave because it was causing her stress.
2. The effect of the repeated contact was to create a hostile and intimidating environment for Ms Toure. She had said, in clear terms, that contact from HMRC made her emotional. The Employment Tribunal therefore said: “We have no difficulty in concluding that, subjectively, the effect for the repeated conduct was to create a hostile and intimidating environment for her.”
3. The Tribunal went on to find that objectively it was reasonable for Ms Toure to feel this way.
4. Stress exacerbated Ms Toure’s disability (her tumour) and vice versa. Therefore, there was an inherent causal relationship between the conduct complained of, and Ms Toure’s disability.

Ms Toure’s harassment on the grounds of disability claim was therefore successful.

Ms Toure was not successful with her harassment on the grounds of race claim. The Employment Tribunal found the reason Ms Toure’s manager sent her a birthday card was because she was mistakenly not told that Ms Toure wished not to be on “the birthday list” and that it was nothing to do with Ms Toure’s race.

Learnings from this case:

This is an unusual case, but it shows that even when contact is genuine in can amount to harassment if it is linked to a protected characteristic that the employee has. This is because the law on harassment focuses on the impact of the conduct on the employee rather than the intent of the employer.

To avoid facing such claims businesses should:

• Review their sickness absence policy and train managers on it. Policies should state what contact the business will usually make with employees on sick leave, who is responsible for keeping in touch with the employee and how the contact will usually be made.
• Take care not to follow a policy too rigidly. Whilst policies are extremely useful to provide guidance to managers and employees on sick leave and also to create a level of consistency across the business, sickness absences should be dealt with on a case by case basis. For example, what contact is reasonable with an employee signed off with mental health issues will be different from an employee who is off work waiting for an operation.
• Take a pro-active approach to keeping in-touch with absent employees as the onus is on the employer to request updates from the employee on their medical condition, rather than the onus being on the employee to keep their employer up to date.
• Agree with the employee how the business will keep in contact with them and stick to the agreement. Will it be over email, calls? Will the contact be weekly, bi-weekly or monthly?
• Keep a paper trail of the contact with the employee. If the employee is not engaging then keep a paper trail of the attempts to keep in contact.