Sending birthday cards to colleagues could count as harassment

Sending a card to a colleague who has said they do not want their birthday celebrated could count as harassment, an employment tribunal has ruled.

The conclusion came in the case of a tax worker who has successfully sued HMRC after bosses sent her a birthday card when she expressly said she did not celebrate it.

Kani Toure was off sick with work-related stress when she asked for correspondence to be kept to a minimum and via email, the tribunal heard.

However, in the month that followed she was contacted “more than once every other day”, before being sent a birthday card despite informing her boss the previous year she did not want one.

Ms Toure, who suffers from a pituitary gland tumour that is exacerbated by stress, is now in line for compensation after winning several claims of race and disability harassment and discrimination against the government department.

‘Repeat contact exacerbating symptoms’

The tribunal in south London heard Ms Toure, a French national of African origin and a Muslim, started working as a customer service consultant at HMRC’s Croydon office in October 2019.

In March 2020, at the start of the first pandemic lockdown, she started working from home.

Four months later, after difficulties claiming utility expenses, she told Hugh Henderson, her boss, via email that she had been discriminated against “mostly because of my foreign accent and origin”, although this was ignored.

Then on Ms Toure’s first birthday at HMRC on Aug 2 2020, Mr Henderson mentioned in a meeting that it was her birthday.

“He had a practice, at that time, of keeping a list with the birthdays of each member of his team on it,” the tribunal heard.

The next day, Ms Toure emailed him saying although it had been “very kind”, she wasn’t celebrating her birthday for “personal reasons” and asked her details be taken off any celebratory list, which she was.

By September 2020, the tribunal heard Ms Toure felt she was being “left out” of training opportunities and in November 2020 she submitted a formal, 11-page long grievance which contained “a number of allegations against a range of colleagues”.

As a result, she was transferred to HMRC’s Canary Wharf office on a temporary basis for six months. The tribunal heard that she was told she would have to withdraw her grievance if she wanted the transfer to be made permanent.

In June 2021, she saw occupational health, where a report found the tumour caused her pituitary gland to produce too much of a hormone called prolactin, which could trigger migraines.

She was subsequently on sick leave from June 30 2021.

In the month that followed, she was sent 11 emails to check she was “alright” as well as a birthday card.

The panel heard this “repeated contact” had “exacerbated” her symptoms.

Ms Toure remained absent from work until she was sent a letter in November 2021, warning her that she faced “formal steps regarding her sickness absence”.

Ms Toure then took HMRC to the tribunal, making over 20 allegations of race and disability harassment, as well as discrimination and victimisation. Ten of her claims were successful.

‘Hostile and intimidating environment’

Adam Leith, the employment judge, said: “[HMRC’s] conduct, in repeatedly contacting [Ms Toure] during the early part of her sickness absence, was unwanted.

“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.”

The judge said the “repeated contact” created a “hostile and intimidating environment” for her.

The judge said Ms Toure had been victimised by Mr Henderson when her complaints were “ignored” and said the offer of a permanent transfer in exchange for withdrawing her grievance amounted to race harassment.

Ms Toure also won a claim of disability harassment after an HMRC report claimed her complaints were “baseless” and “made as a result of the medication she was taking for her tumour”.

A claim of disability discrimination was also upheld after being told “formal action” would be taken about her continuing sickness absence.

A remedy hearing will take place at a later date to decide her compensation.