If so, how long is an acceptable duration? And what if the contact is unwanted?
These issues were recently considered by an employment tribunal in the case of Tory v Commissioners of HMRC.
Ms Touré joined HMRC in 2019 and is a French national of African descent and Muslim. She had a disability as defined by the Equality Act 2010. Comments were made about her accent and appearance, including being described as a “pretty black woman”. She was also asked why she wore a hijab.
During a team meeting in August 2020, Ms. Torrey’s manager (who kept a list of her team’s birthdays) acknowledged her birthday to the team. Ms. Torrey then emailed her manager, explaining that while she appreciated the birthday wishes, she did not want her personal information shared. She asked to be removed from the list.
Ms. Torrey then filed an informal complaint, and then a formal complaint, about how her expense claim and lack of training opportunities were handled.
The complaint was mostly not accepted, nor was her second complaint.
On 30 June 2021, Ms. Tori was absent from work due to illness due to work pressures. She asked her line manager to keep correspondence to a minimum and send it only by email. During the first three weeks of July 2021, she was contacted 11 times and received another birthday card.
The court acknowledged that some of the correspondence was due to Ms. Tory’s lack of proactive efforts to report her absence due to illness. None of the communications, including the Christmas card, were intended to harass her.
However, the court held that this conduct was undesirable because of Ms. Torrey’s disability. The correspondence had the effect (even if unintended) of creating a hostile and intimidating environment for Ms. Torrey. This constituted disability-related harassment.
Lessons for employers
Correspondence may be sent with the best of intentions. However, it is difficult for employers to strike a balance, particularly as ACAS guidance suggests that employees absent due to a mental health condition often benefit from regular contact with their employer.
How can an employer avoid making a similar mistake?
Review absence policies
We should consider whether there are appropriate provisions for contact during periods of sickness absence. These provisions should cover the purpose, frequency and method of contact, and can be modified as necessary.
Consult your employees
Get your employees’ input on how, when, and who to contact. Part of this discussion could be about how much information the employee is willing to share with colleagues. Make sure you pass on what has been agreed to to anyone else who contacts the employee.
unify correspondence
This is particularly important in larger organisations. Communication may come from the line manager, HR, payroll or occupational health teams. They may not communicate with the employee frequently individually, but collectively, their correspondence may be important. Employers also need to be aware of automatically generated correspondence, for example, a message informing an employee of a reduction or termination of contractual sick leave. Ensure that communications come from only one person or at specific times whenever possible.
This case serves as a valuable and important reminder to employers of the need to follow clear and transparent policies while keeping in mind the needs of individual employees.