Contact while on sick leave was harassment

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In the case of McCalam v Royal Mail, the employment tribunal (ET) had to determine whether an employee had been subjected to race and disability harassment due to comments made by different members of staff.

The claimant was Scottish and claimed that he had been subjected to race discrimination when a colleague told him several times, during a conversation, that he could not understand him and screwed up his face.

Separately, the claimant claimed disability harassment because of questions he was asked during a conversation about a perceived failure to consent to an occupational health assessment.

The employee was off sick and had submitted a fit note which stated stress at work as the reason for absence. A manager telephoned the claimant on the understanding that the claimant had refused to give consent for the assessment, although the claimant asserted he had not refused but that the call had caused him to be upset because the line went dead on several occasions and the occupational health representative had not called him back.

During the call, the manager asked the claimant what the reason for his absence was, which surprised the claimant because he was aware that the manager had been given the fit note. He protested at being asked this question due to the provision of the fit note and the manager replied “I’m only asking”.

The manager then asked what activities the claimant was completing at home. The claimant showed upset at this question again and told the manager he was off sick with stress and this questioning was making him feel worse.

On the race claim, the ET found that the claimant had not suffered harassment. The colleague with whom the claimant was speaking had previously had a stroke and gave evidence that he continued to have difficulties in processing and filtering information, especially when people talk quickly. He also said that the claimant was prone to speaking quickly when he became irate. The ET found that the reason for the comment was because he was speaking quickly and not because of his accent.

The ET did, however, find that the disability harassment claim was well founded because both lines of questioning – the reason for the absence and the activities the claimant was completing at home – violated the Claimant’s dignity and created a hostile, humiliating or offensive environment for him.

The manager said that he was simply following protocol in these situations, which was to confirm the reason for the absence with the employee and enquire whether there were any work activities that he could do at home. The ET found that this was not actually what had happened and that the question about activities at home was statement redolent of distrust and implied that the Claimant was fit to carry out activities notwithstanding his absence from work through illness.

The manager’s argument that his words were just “clumsy” could not affect the finding because, as the ET said, an act of harassment does not need to be deliberate.