An Employment Law Update: Ms H Toure v Commissioners for HMRC

In the recent decision of Ms H Toure v Commissioners for His Majesty’s Revenue and Customs, the Claimant successfully brought claims of race and disability harassment and discrimination. The Employment Tribunal (ET) has ruled that sending a colleague an ‘unwanted’ birthday card amounted to harassment.

Facts of the Case

The Claimant, Ms Toure, began working for HMRC in 2019 as a customer service consultant. Ms Toure is a French national of African origin and a Muslim.

The Claimant had experienced difficulties whilst working and one of the allegations was when the Claimant attended a training course on handling telephone enquiries in October 2019. In response to a question about what made people difficult to understand on the phone, a colleague had said “pronunciation and accent”, pointing to the Claimant.

The Claimant also experienced difficulties when claiming utility expenses whilst working from home. It appeared that these complaints had been ignored.

Ms Toure also complained regarding a birthday card incident. Mr Henderson, the Claimant’s manager, maintained a list of birthdays of the employees in his team and in August 2020, Mr Henderson wished the Claimant a happy birthday during a meeting on the date in question. The following day, the Claimant contacted her manager to request that her birthday be removed from his list as she preferred not to celebrate for personal reasons.

In September 2020, the Claimant complained that she was being left out of training opportunities and in November 2020, the Claimant submitted a formal grievance comprising of eleven pages. The Claimant was then transferred to another office location for six months and she was informed that if she wanted the transfer to be permanent, she must withdraw her grievance.

In June 2021, the Claimant attended an Occupational Health appointment and the report confirmed that the Claimant had a tumour which causes her pituitary gland to produce excessive prolactin, which can trigger migraines. The Claimant began sick leave on 30 June 2021. She requested that her employer should have minimal contact with her during her absence as stress exacerbated her symptoms. However, the Claimant received eleven emails and a birthday card over three weeks.

In November 2021, the Claimant then received a letter from her employer that formal steps would be taken regarding her sick leave.

ET decision

The claims were heard by Judge Adam Leith in the ET and ten of the Claimant’s claims were upheld.

The ET ruled that HMRC’s repeated contact during the Claimant’s absence constituted “unwanted conduct”, as “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.”

They also ruled that sending the Claimant a birthday card was also unwanted conduct, in the sense that she had told Mr. Henderson that she did not want her birthday to be marked.

The ET also considered that the effect of the repeated conduct was to create a hostile and intimidating environment for the Claimant, and they held that “[HMRC’s] explanation for the treatment was that (in essence) they had a duty of care to the Claimant and had to check on her welfare. […] 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 ET also held that the Claimant was victimised when her complaint was ignored, the offer of a permanent transfer in exchange for withdrawing her grievance constitutes race harassment.

Additionally, the Claimant also won a claim of disability harassment after an HMRC report claimed her complaints were baseless and a result of her medication and a claim of disability discrimination after being threatened with formal action for her continuing sickness absence.

The amount of the Claimant’s compensation will be decided at a later date.

What this means for you

This case highlights the importance of ensuring that if an employee is on long-term sickness or raises a formal grievance, that you follow a full process and ensure that this is dealt with correctly. Please do contact our Employment Team for more information on 0330 088 2275