How office birthday cards became a legal minefield

For staffers aware of changing workplace mores, a new battleground is emerging: greeting cards. This month an employment tribunal saw a card – or lack thereof – cited as part of a sexual harassment and victimization case. Karen Conaghan, a former business liaison at British Airways owner IAG, said not receiving a departure card was evidence of the company’s “inability to acknowledge its existence”. It turns out that managers had indeed bought her one, but felt that passing it on when only three signatures had been collected would have been more insulting than not giving her the card at all. (Of the forty claims she submitted to the tribunal, all were rejected.)

It follows a ruling in the summer in which an HMRC customer service consultant won her discrimination case after receiving a birthday card while on sick leave. After ‘clearly explaining’ that she did not want the occasion celebrated, Kani Toure’s manager’s decision to ignore her wishes – and contact her 11 times over a three-week period – contributed to a ‘hostile and intimidating environment’, the tribunal heard. . “It is, in our opinion, impossible to separate the treatment (continuing to repeatedly contact the claimant despite the request not to do so) from the fact that the claimant was absent for a reason related to her disability,” the statement said. right.

Is this the end of the office card?

Greeting cards in themselves are unlikely to amount to harassment. But if someone wants to build evidence “that he or she is being discriminated against, it must be on the basis of a protected characteristic,” explains James Davies, partner at employment law specialist Lewis Silkin. “You can’t go to an employment tribunal and say, ‘I’ve been bullied.’ There is no such legal claim.”

Harassment or discrimination claims must specifically relate to gender, sexual orientation, gender reassignment, religion, race, pregnancy, marriage, age or disability, which are protected characteristics. “You have the right not to be harassed,” Davies adds. “A work environment where you are ridiculed because of something related to your protected characteristic could give rise to a legal claim. But that is not possible with one birthday card.”

Flash points in the workplace

“Business in the workplace can lead to problems and you can defend yourself by saying it was just banter and no harm was intended and usually won’t help,” says Davies, adding that the most common form of harassment is sexual in the workplace.

Yet others keep popping up, especially those related to ageism. In April, a recycling plant worker successfully filed a discrimination lawsuit after being asked to sit during his shift. Being given the opportunity to sit while younger staff remain standing could amount to “less favorable treatment”, the judge said.

Jokes along the lines of “have you bought your Zimmer frame yet?” It’s also unlikely to go well, says Davies, because “you have to be a bit careful that that doesn’t contribute to or reinforce a campaign of age harassment.” While many may mean well, “if you’re the older worker who feels a little sensitive about their age and feels a little marginalized, it can reinforce the perception of age discrimination.”

Similar problems arise when jokes are made about religion and alcohol, because “someone who comes from a religion where they don’t drink alcohol can be mocked about it and feel left out.”

Drinking — once a cornerstone of office culture — in general can be difficult to deal with, he says. “Employers will be liable for the actions of their employees, including outside the office or outside normal working hours, if there is a sufficiently close connection with work, for example if colleagues go to the pub after work.” That doesn’t mean that after-work socialization should be banned, he says, “but perhaps we should remind people of expectations and not to drink excessively. It will all depend on the specific circumstances.”

Politics can also prove problematic at work. Over the past year, the conflict in the Middle East has led to staff being “offended by the statements of colleagues”, with Davies having seen “similar numbers upset or harassed by pro-Israeli and pro-Palestinian comments. Social divisions cause tensions, and sometimes legal claims, when they spill over into the workplace.”

The rise of populism also “will be a source of legal challenges for future employers,” Davies adds, and “some employers with an international workforce are faced with addressing these tensions globally.”

How much is at stake?

“There has been an evolution of acceptable behavior in the workplace,” says Davies, noting that most companies have moved with the times. According to the Advice, Mediation and Arbitration Service, three quarters of disputes do not end up in a tribunal, while the issues are settled outside it.

The money at stake for some may mean it is not worth pursuing claims at the tribunal, he adds, as legal fees could cost more than the claimant would be awarded.

When it comes to successful cases, it helps if you have already left the company, because the already fired employee “generates the bigger legal claims.” Their dismissal is usually combined with claims about the way they have been discriminated against during their employment.

“You’re going to get a lot more claims that arise from people resigning or being made redundant because you’re getting compensation for the lost income because you’ve lost your job, whereas you’re not going to get many of these claims unless they’re very serious forms of intimidation.

“In discrimination claims, there is no limit to the amount of compensation you can receive for financial losses,” Davies explains. When deciding whether to award a claimant, tribunals take into account two factors: how much you previously earned, and how long it will take to find equivalent employment. That means that for staffers who earned large amounts of money, “you can get significant financial compensation.”

What can employers do?

“The real lesson for all employers is that they need an effective system for people to make complaints,” says Davies. If someone complains, goes through all official company channels and the employer then takes no steps to alleviate this, then you as an employer have a problem. You have to have a good process.”

For large employers, he recommends preparing a harassment risk assessment (such as those carried out for health and safety) to identify issues and lead to effective controls.

Communication from employees to employees also requires careful consideration. In an employment tribunal this month, recruitment manager Nadine Hanson won an unfair dismissal claim after her boss Andrew Gilchrist refused to say goodbye to her because he thought she had arrived late. This would “likely undermine (her) confidence,” the judge ruled. The lack of hello quickly got out of hand: Gilchrist later withheld Hanson’s sick pay and gave raises to her staff without informing her. The irony? The company where they clashed is called Interaction Recruitment – ​​a place where sensible interaction seems to have left the building entirely.