Is it my fault if one of my employees harasses another employee?
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An HMRC customer service worker has won a case at the employment tribunal over a complaint of harassment with judges finding work environment was ‘hostile and intimidating’
Ms H Toure worked at HMRC as a customer service consultant and administrative officer at HMRC’s Croydon office and had been on sick leave due to work-related stress after Covid. Toure had also experienced repeated instances of harassment during the course of her employment.
The case centred around whether HMRC harassed Toure while she was off sick when she had asked for communications only by email, and ongoing harassment from colleagues and managers, some of which indicated a challenging working environment.
Toure brought a claim to the employment tribunal based on various grounds ranging from harassment to discrimination related to a two and a half year period working at HMRC.
The tribunal recognised that at all times Toure had a disability for the purpose of the Equality Act 2010.
Due to problems with the team and Toure's claims that she was being harassed and racially discriminated in the end she was transferred from the Croydon office to Canary Wharf after HMRC's offices reopened after the Covid pandemic.
When Toure was transferred to the Canary Wharf office she was asked to drop of discrimination claim to make the move permanent, which she said ‘violated her dignity’.
The tribunal said: ‘We accept that it had the effect of violating the claimant’s dignity, because it gave the claimant the stark choice of leaving her allegation of discrimination uninvestigated and unresolved if she wanted her transfer to be permanent. We additionally conclude that it was objectively reasonable for it to have that effect.’
Toure went off ill and was absent from work from 30 June 2021 due to sick leave. Her team leader Sarah Noble was on annual leave that day.
However, Toure did not contact anyone at HMRC to indicate that she was absent. On 1 July 2021, Noble therefore contacted the claimant.
On 2 July 2021 she emailed her HMRC team leader based in the Croydon office and asked that correspondence be ‘kept to the essential’, and be conducted by email, as interactions from HMRC made her emotional.
From 2 July to 5 August 2021, Noble contacted the claimant on eleven occasions over a three-week period via phone, email and a birthday card when she was off work sick. Some of the calls were to ask for fit notes and regarding the recommendations made in her occupational health report.
The birthday card raised a red flag for the claimant as she had asked her previous team leader to remove her birthday details from a list he held as she did not want to celebrate her birthday.
The tribunal stated that HMRC’s ‘conduct, in repeatedly contacting the claimant during the early part of her sickness absence, was unwanted. The claimant had asked for correspondence to be kept to a minimum, and to be by email only.
‘While she could have been more proactive in reporting her absence, she had clearly explained why she wished for correspondence to be kept to a minimum.
‘The birthday card was also unwanted, in the sense that she had told Mr Henderson that she did not want her birthday to be marked.
‘On Mrs Noble’s part, we accept that that was an inadvertent failure, in that Mr Henderson had failed to pass on the message when the claimant left his team.’
In the ruling, the tribunal said: ‘We consider that the effect of the repeated contact was to create a hostile and intimidating environment for the claimant. She had said, in clear terms, that contact from the respondent made her emotional. We have no difficulty in concluding that, subjectively, the effect for the repeated conduct was to create a hostile and intimidating environment for her.’
The reason for Toure’s sickness absence was down to her disability, the tribunal decided.
‘It is in our judgment impossible to separate the treatment (continuing to contact the claimant repeatedly despite being asked not to do so) from the fact that the claimant was absent for a reason which was linked to her disability.’
HMRC argued that the explanation for the treatment was that (in essence) ‘they had a duty of care to the claimant and had to check on her welfare’.
But the tribunal said they had ‘some doubts about that’, adding that ‘in the circumstances, HMRC’s duty of care would on the face of it have been more effectively observed by complying with her expressed wishes’.
The tribunal ruled in favour of the complainant on three grounds, complaints of harassment related to race, harassment related to disability, and victimisation.
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