Should you contact someone on sick leave?

Case Facts

Ms Toure joined HMRC in October 2019 as a Customer Service Consultant. Ms Toure, is a French national of African origin, a Muslim, and was considered by HMRC to be disabled by reason of both a macroprolactinoma (a pituitary gland tumour) and asthma.

From the outset of her employment with HMRC, she described being subjected to comments about her accent and questions about her origin. She later described being asked by an employee in December 2019 why she wore a headscarf and that comments were made about her appearance, including being described as being a “beautiful black woman”.

During a team meeting in August of 2020, the Claimant’s line manager (who kept a record of his team members birthdays) acknowledged the Claimant’s birthday to the wider team. Subsequently the Claimant emailed her line manager to explain that while she had appreciated her team’s birthday wishes she did not wish for her personal information to be shared and asked her line manager to remove her name from his birthday list.

After further concerns about the way that an expenses claim raised by the Claimant had been handled and concerns that she was not being provided with the training opportunities afforded to her colleagues, the Claimant raised an informal complaint and later a formal grievance.

During the period that her grievance was being investigated, the Claimant was temporarily transferred to another office. The Claimant’s grievance was mostly not upheld, nor was a second grievance which the Claimant had later raised.

At the conclusion of the grievance processes, it was confirmed by HMRC that the Claimant’s temporary relocation to the alternative office was not a permanent arrangement unless the Claimant began to travel to this office at her own expense, rather than working from home. Eventually the Claimant returned to her original office based in Croydon but returned to a new team and to a new line manager.

Not long after this, the Claimant began a period of sickness absence commencing on 30^th June 2021. On 2^nd July the Claimant emailed her line manager to ask that correspondence be kept to a minimum and be by email only, raising that correspondence from HMRC made her emotional. In between 2^nd July and 23^rd July, the Claimant was contacted 11 times (predominantly by email) by HMRC and she also received a birthday card from her line manager around her birthday at the beginning of August.

Whilst the Tribunal accepted that some of the correspondence during this period was due to the Claimant’s lack of proactive efforts in respect of her sickness absence reporting and that none of the contact, including the birthday card, was intended to harass the Claimant, the Tribunal concluded that ultimately it did constitute unwanted conduct as a result of her disability. The Tribunal noted that the sending of the birthday card was an inadvertent failure as the Claimant’s previous line manager had not communicated the Claimant’s wishes in this respect to her new line manager, however the Tribunal decided that all of the correspondence had the effect, even if not the purpose, of creating a hostile and intimidating environment for the Claimant. The Tribunal therefore made a finding of harassment as related to disability (but not in relation to race).

How can an employer avoid making a similar mistake?

This decision has left some employers wondering how they avoid making a similar misstep, noting in particular that such issues can arise inadvertently without their being any intention around this. This is particularly so given that Acas’s guidance on the matter suggests that employees who are absent because of a mental health condition often benefit from regular contact with their employer.

1. Review Absence Policies

Employers should review their Absence Policies to consider whether they have suitable provisions for contact during periods of sickness absence. Many policies will prescribe a timetable for when contact about the absence is likely to happen and in what format this normally takes place.

Whilst this is not to say that employers can or must stick rigidly to this and where necessary they must consider if any reasonable adjustments are required, it can be helpful for a policy to set out expectations around contact during periods of absence so that each party is clear on this and for the purpose of any correspondence from the employer to be clear to the employee.

2. Seek the views of the employee

As part of this policy, it may be appropriate to seek the views of the employee on how, when and from whom contact should be made. Part of this discussion can be about how much information an employee wishes to have shared with their team about the nature of their absence, which is often another area where tensions can arise.

The form of any communication is also a key topic for discussion. Seeking an absent employee’s view on how they wish to be communicated with can be useful in establishing appropriate boundaries.

Keeping a record of what is discussed and agreed is very helpful, but it’s also important to ensure that this record is passed onto any relevant person who subsequently may become responsible for making contact with the absent employee.

3. Consolidate correspondence

In large organisations, contact with absent employees may come from a variety of sources such as from a line manager, from HR, from payroll teams and from any personnel who may be appointed to deal with any processes that may be running alongside the absence such as Occupational Health referrals or grievance or disciplinary processes.

Whilst each individual person within that organisation may not be corresponding with the employee frequently, collectively their correspondence may be significant to an absent employee.

In addition, organisations may have systems in place which automatically generate correspondence to an absent employee for instance a letter informing an employee that they may be able to begin a period of reduced or nil pay.

Here, organisations may need to take proactive measures to consolidate correspondence from various sources, perhaps ensuring that messages are conveyed by one person only or at set times and that the organisation gets ahead of any automatically generated correspondence in circumstances where it is not appropriate for it to be sent.

Comment

This case serves as a reminder of the importance of having clear and transparent policies in place and for the implementation of such policies to be balanced against the needs of individual employees.