Should you contact an employee on sick leave?

The Employment Tribunal recently considered these issues in the Toure v Commissioners for HM Revenue and Customs case.

Ms Toure joined HMRC in 2019 and is a French national of African origin and a Muslim. She had a disability as defined by the Equality Act 2010. Comments were made about her accent and her appearance, including being described as being a “beautiful black woman”. She was also asked why she wore a headscarf.

During a team meeting in August 2020, Ms Toure’s line manager (who kept a list of his team’s birthdays) acknowledged her birthday to the team. Ms Toure then emailed her line manager, explaining that although she had appreciated the birthday wishes, she did not want her personal information shared. She asked to be removed from the list.

Ms Toure subsequently raised an informal complaint and later a formal grievance about how her expenses claim had been handled and the lack of training opportunities.

The grievance was mostly not upheld, nor was her second grievance.

Ms Toure went off sick on 30 June 2021 for work-related stress. She asked her line manager to keep correspondence to a minimum and to send it only by email. During the first three weeks of July 2021, she was contacted 11 times and received another birthday card.

The Tribunal accepted that some of the correspondence was because of Ms Toure’s lack of proactive efforts to report her sickness absence. None of the contact, including the birthday card, was intended to harass her.

However, the Tribunal held that it was unwanted conduct due to Ms Toure’s disability. The correspondence had the effect (even if not intended) of creating a hostile and intimidating environment for Ms Toure. 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, especially as ACAS’s guidance suggests that employees absent because of a mental health condition often benefit from regular contact with their employer.

How can an employer avoid making a similar mistake?

Review Absence policies

Consider whether there are suitable provisions for contact during periods of sickness absence. These provisions should cover the purpose, frequency, and method of contact, and they can be adjusted when necessary.

Consult your employees

Obtain your employees’ views on how, when, and from whom contact should be made. Part of this discussion can be about how much information the employee wants to share with colleagues. Ensure that what has been agreed upon is passed on to anyone else contacting the employee.

Consolidate correspondence

This is particularly important in large organisations. Contact may come from a line manager, HR, payroll teams, or occupational health. Individually, they may not correspond with the employee frequently, but collectively, their correspondence could be significant. Employers also need to take care of automatically generated correspondence, for example, a communication informing the employee that contractual sick pay is being reduced or ending. Ensure that communications come from one person only or at set times wherever possible.

This case is a valuable and important reminder for employers to have clear and transparent policies while remembering the needs of individual employees.