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the latest position on claims under the Protection from Harassment Act 1997

Summary

·                In some personal injury cases a claim under the Protection from Harassment Act 1997 against an employer may be an alternative to an “occupational stress claim”;

·                Requires a course of conduct amounting to harassment. Harassment is not defined in the Act but it includes causing anxiety or distress;

·                “Course of conduct” means conduct on at least two occasions. Conduct may be harassment even if no alarm or distress caused; certain courses of conduct are excepted e.g. where in the circumstances it was reasonable to pursue the course of conduct;

·                The conduct must be of an order which would sustain criminal liability under the Act. The Courts will distinguish between unattractive and even unreasonable conduct, and conduct which is oppressive and unacceptable. The ordinary banter and badinage of life, irritations, annoyances, even a measure of upset contrast with genuinely offensive and unacceptable behaviour;

·                The test is objective -would a reasonable person in possession of the same information think that their conduct amounted to harassment. There is no requirement of foreseeability;

·                The conduct must be by an employee in the course of his employment and meet the ‘close connection’ test-is the conduct is so closely connected with the acts the employee is authorised to do that the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment;

·                Breach gives rise to a claim for damages for distress and anxiety and consequential losses caused by the harassment. Ordinary principles of causation and mitigation apply. There is no requirement that harm be foreseeable but awards of damages will normally be modest;

·                The limitation period is 6 years under the Act (compared with 3 years under common law).

The judgment

It is now clear that, following the Court of Appeal’s 2002 judgment in Sutherland -v- Hatton, the vast majority of cases brought by employees seeking common law damages against their employers for “occupational stress” will fail. However, there may be an alternative to bringing claims in the common law under the Protection from Harassment Act 1997.

The Act prohibits harassment: a person must not pursue a course of conduct which amounts to harassment of another. A breach of this prohibition may be the subject, amongst other matters, of a claim for damages. In the leading case of Majrowski the House of Lords considered the application of the Act to claims by employees against their employers in cases where fellow employees had allegedly harassed them.

This case concerns two employees of Guy’s and St Thomas’s NHS Trust. In November 1998 the Trust employed William Majrowski as a clinical auditor co-ordinator. His departmental manager was Mrs Sandra Freeman. Mr Majrowski claimed she bullied and intimidated him. She was, he said, rude and abusive to him in front of other staff. She was excessively critical of his time-keeping and work. She imposed unrealistic performance targets for him and threatened him with disciplinary action if he failed to meet them. She isolated him by refusing to talk to him. This treatment, he said, was fuelled by homophobia: he is a gay man. Nearly four years later, Mr Majrowski commenced proceedings against the Trust. He claimed damages pursuant to section 3 of the Act. Mr Majrowski’s claim was for damages for distress, anxiety and consequential losses caused by the harassment he suffered while employed by the Trust. He made no claims against either Mrs Freeman herself or against the Trust for negligence or breach of his contract of employment. His claim was based exclusively on the Trust’s vicarious liability for Mrs Freeman’s alleged breach of the statutory prohibition of harassment.

The proceedings were struck out by at the Central London County Court on the ground that the 1997 Act was not designed to create another level of liability in employment law. The appeal was heard by the Court of Appeal; by a majority of two to one, the Court of Appeal allowed the appeal holding that the case should be permitted to go to trial. The court would then have to determine whether Mrs Freeman did harass Mr Majrowski within the meaning of the Act in the ways he alleged. The Trust then appealed to the House of Lords, and judgment was delivered on 12 July 2006.

Under the principle of vicarious liability a blameless employer is liable for a wrong committed by his employee while the latter is about his employer’s business-the time-honoured phrase is ‘while acting in the course of his employment’. The principle of vicarious liability is at odds with the general approach of the common law. The general approach is that a person is liable only for his own acts. A precondition of vicarious liability is that the wrong must be committed by an employee in the course of his employment. A wrong is committed in the course of employment only if the conduct is so closely connected with acts the employee is authorised to do that, for the purposes of the liability of the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment[1].  

An employer’s liability is not confined to responsibility for acts done by an employee in the course of his employment. He is also liable for the wrongs of his employee committed in the course of employment. The employee’s wrong is imputed to the employer. [2]

The purpose of the Act is to protect victims of harassment, whatever form the harassment takes, wherever it occurs and whatever its motivation. The Act seeks to provide protection against stalkers, racial abusers, disruptive neighbours, bullying at work and so forth. Section 1 prohibits harassment in these terms:

(1) A person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

Certain courses of conduct are excepted by section 1(3): notably where in the circumstances it was reasonable to pursue the course of conduct. Harassment is not defined in the Act, but it includes causing anxiety or distress. A course of conduct means conduct on at least two occasions[3] and harassment may be of more than one person[4].

This statutory prohibition applies as much between an employer and an employee as it does between any other two persons. Although the victim must be an individual, the perpetrator may be a corporate body.

Section 3[5] affords victims a civil remedy in respect both of actual breaches of section 1 and also threatened breaches. For instance, a single act of harassment may have occurred, not in itself a course of conduct, and the victim may fear repetition. Subsequent provisions in the section make plain that the court may grant an injunction for the purpose of restraining a defendant from pursuing any conduct which amounts to harassment. Breach, without reasonable excuse, of such an injunction is itself a criminal offence by subsection (6).

The Trust, relying on the word ‘may’ in section 3(2), submitted that an award of damages under this section is discretionary. A claimant is not entitled to damages as of right. Hence, it was said, harassment cannot be equated with a common law tort. Lord Nicholls of Birkenhead disagreed (Paragraph 22). He concluded that the effect of section 3(1) is to render a breach of section 1 a wrong giving rise to the ordinary remedies the law provides for civil wrongs. This includes an entitlement to damages for any loss or damage sustained by a victim by reason of the wrong. Ordinary principles of causation and mitigation and the like apply.

The  Trust’s case was that the Act was response to the public order problem of stalking and was not aimed at the workplace. It was a public order provision designed to punish perpetrators for the anxiety and upset they cause to victims, not blameless employers who happen to be solvent and available as a target for litigation. Vicarious liability would mean that a blameless employer would be liable in damages where damages are recoverable for anxiety short of personal injury, foreseeability of damage is not an essential ingredient, and the limitation period is six years and not the usual period applicable to personal injury claims. It argued that vicarious liability would increase very considerably the volume of claims based on stress, anxiety or other emotional problems at work. The courts would be unable to strike out unmeritorious claims. The burden on employers, insurers and the administration of justice would be wholly unjustified. Lord Nicholls was not persuaded by these arguments. However he made it clear that vicarious liability arises only if the new wrong is committed by an employee in the course of his employment, The acts of the employee must meet the ‘close connection’ test. He gave the example of an employee who, in the course of his employment, harasses a non-employee, such as a customer of the employer. In such a case the employer would be liable if his employee had assaulted the customer. In principle, harassment arising from a dispute between two employees stands on the same footing. If, acting in the course of his employment, one employee assaults another, the employer is liable.

The matter of most concern to employers is the prospect of abuse in cases of alleged workplace harassment. Employers fear the prospect of a multiplicity of unfounded, speculative claims if they are vicariously liable for employees’ harassment. Disgruntled employees or ex-employees, perhaps suffering from stress at work unrelated to harassment, perhaps bitter at being dismissed, might advance claims for compensation for harassment. Internal grievance procedures will not always satisfy an employee who is nursing a grievance. Although awards of damages for anxiety under the Act will normally be modest, a claimant could pursue his present or erstwhile employer, not the alleged wrongdoer himself. The claim may be put forward for the first time years after the alleged harassment is said to have occurred. The alleged perpetrator may no longer be with the employer and may not be traceable. However Lord Nicholls held that “the possibility of abuse is not a good reason for denying that right. Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the ‘close connection’ test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2 [of the Act]”

Mattis v Pollock (trading as Flamingos Nightclub) [2003] 1 WLR 2158 was a case where the doorman at a nightclub, having been involved in a violent altercation with the claimant on the premises while performing his duties there, armed himself with a knife which he fetched from his flat a short distance away and attacked him in the street with it some time afterwards. The Court of Appeal held that the responsibility of the nightclub owner for the actions of his aggressive doorman was not extinguished by the separation in time and place from what had happened in the nightclub, and that vicarious liability was therefore established. But it went on to say that, although personal liability would not necessarily and always follow the establishment of vicarious liability, in that case it did because the owner had chosen to employ the doorman, knowing and approving of his aggressive tendencies, which he had encouraged rather than curbed. As the Court of Appeal indicated in Mattis, the encouragement or approval by the employer of such conduct could lead to that result. Indeed, section 7(3A) of the 1997 Act, inserted by section 44(1) of the Criminal Justice and Police Act 2001, expressly provides for precisely such a situation[6].

Baroness Hale of Richmond considered the questions that parliament may have had in mind when drafting the Act. For instance, should the employers of people who harass others in the course of their employment be vicariously liable for any damages the court may order under the Act?. They might have considered that the principal purpose of the Act was prevention and protection rather than compensation. If this was the aim, it is easy to see why the definition of harassment was left deliberately wide and open-ended. It does require a course of conduct, but this can be shown by conduct on at least two occasions[7]. All sorts of conduct may amount to harassment. It includes alarming a person or causing distress[8]. But conduct might be harassment even if no alarm or distress were in fact caused. As Baroness Hale put it, “a great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour”.

A person is guilty of harassment if he knows or ought to know that his course conduct amounts to harassment[9]. He ought to know this if a reasonable person in possession of the same information would think that it amounted to harassment.[10] There is no requirement that harm, or even alarm or distress, be actually foreseeable, although in most cases it would be.

Vicarious liability, as Lord Nicholls explained, does not depend upon the employer having done anything wrong or even having broken any legal duty imposed upon him. It merely requires that the enterprise pay for damage done by its employees in the course of their employment, a concept which now has a very broad meaning, and certainly embraces conduct which the employer was actively trying to deter and could have done nothing more to prevent. On the facts of Majrowski, the employer had a grievance procedure which was designed to prevent workplace harassment and the perpetrator resigned as a result.

Employers already owe a duty of care towards their employees, to take reasonable steps to protect them from foreseeable harm to their physical or mental health. There has been a rapid expansion in claims for psychiatric injury resulting from stress at work. Liability turns on the foreseeability of such injury to the particular employee and what the employer might reasonably have been expected to do to avoid it. If employers can be vicariously liable for anxiety and distress caused without any breach of duty on their part, such claims will not only be routinely added to stress at work claims, they will also found a quite separate stream of claims for harassment at work.

Employers fear is that, instead of learning to cope with the inevitable irritations and misfortunes of life, people will look to others to compensate them for all their woes, and those others will then become unduly defensive or protective. Parliament did address the appropriate limitation period and deliberately disapplied the ordinary three year period for personal injury claims. Harassment can take place over very long periods and it did not want earlier conduct to be left out of account.

Lord Carswell considered the classic methods of interpretation of a statutory provision: construction of the language of the enactment, consideration of the mischief at which the provision was aimed and weighing of the consequences of the conflicting interpretations of the provision in question. All are designed to assist the object of the tribunal interpreting the provision, to determine the meaning which Parliament intended in enacting it. The wording of the enactment, not merely individual provisions, but the whole enactment, is the first resort of the interpreter, and in many, if not most, cases it will resolve the question. The Court of Appeal in the present case did not find sufficient indications in the language of the Act to determine the question whether an employer was to be liable for harassment committed by his employee in the course of his employment. It therefore resorted to consideration of the statutory objective and the consequences of adopting either interpretation.  All three members of the Court of Appeal held, on what they described as the broad issue, that an employer’s vicarious liability can extend as a matter of principle to breaches of statutory duty by an employee. He observed, however, that the Act is not confined in its scope to the workplace and, as its history shows, its original focus was not the workplace at all. He envisaged situations in which it is desirable in which there should be vicarious liability for the acts of an employee towards a member of the public, where the victim cannot identify the employee or obtain redress from him.

The Majrowski case demonstrates that, in principle at least, claims under the Act for harassment at work are soundly based in law-although the Court has not decided on the merits of Mr Majrowski’s claim. As a result, claims for “occupational stress” are likely to be very much less commonly -and at best will probably be secondary to claims under the Act.

 

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