The Legal 500

The ‘Stalkers Statute’, otherwise known as the Protection from Harassment Act 1997 (PHA), prohibits a person from pursuing a course of conduct which amounts to harassment of another. Harassment for these purposes can include alarming a person or causing them distress. To qualify, the conduct must occur on at least two occasions.

Majrowski v Guy's and St Thomas' NHS Trust

M claimed that he was bullied and harassed by his female line manager partly because of his sexual orientation. The behaviour complained of included: excessive criticism of his work; strict timekeeping; isolation by his manager, who treated him differently and unfavourably compared to other staff; being rude and abusive in front of other staff; and imposing unrealistic performance targets and threatening disciplinary action if the targets were not achieved.

M raised an internal grievance, which was upheld. However, by that point he had already suffered psychiatric consequences. M was unable to bring a personal injury claim because it was unlikely that he could demonstrate that it was foreseeable to his employers that he would sustain psychiatric injury. Accordingly, he raised the novel argument that as his manager had breached the PHA during the performance of her employment, his employer was vicariously liable. M claimed damages for distress and anxiety and consequential loss caused by the harassment he had suffered.

House of Lords' decision

The House of Lords ruled unanimously that an employer may be vicariously liable for breaches of statutory duties as well as breaches of common law obligations (subject to the wording of any specific statute). There was nothing in the PHA that prevented an employer from being vicariously liable for harassment by its employees, as long as there was a sufficiently close connection with employment.

One of the Law Lords accepted that disgruntled employees or ex-employees, perhaps suffering from stress at work unrelated to harassment and perhaps bitter at being dismissed, could bring ‘nuisance' claims for compensation for harassment. The nuisance value could be further enhanced by the fact that a claim can be brought up to six years after the harassment complained of, when the alleged perpetrator may no longer be employed by the employer and may not be traceable. He considered that the ability of the courts to recognise the boundary between conduct which is unattractive and unreasonable and conduct which is oppressive and unacceptable would safeguard employers against such nuisance claims. Irritations, annoyances and even upset that arises in everybody's day-to-day dealings with other people would be insufficient to form the basis of a claim for the purposes of the PHA. M's case was remitted to the tribunal to assess whether the actual acts complained of amounted to harassment.

Alternative means of compensation

As a consequence of the House of Lords' decision, the PHA will now be viewed as an alternative means of securing compensation from an employer, particularly in cases such as M's, where he was unable to bring a personal injury claim because there was no evidence of foreseeability, or where the usual limitation period for bringing an unfair dismissal or discrimination claim has expired.

A number of factors operate in favour of claimants bringing such a claim: they only have to demonstrate that they have suffered ‘anxiety' as a result of harassment; and it is not necessary to demonstrate that the anxiety is a psychiatric condition or that it was foreseeable. In addition, claimants have six years within which to bring a claim.

Green v DB Group Services (UK) Ltd

Shortly after this decision the High Court upheld a claim brought against Deutsche Bank Group Services (UK) Ltd for breach of the PHA arising as a consequence of the bullying behaviour of a number of the claimant's colleagues. This claim was combined with a personal injury claim. The claimant is believed to have been awarded in the region of £800,000. However, the Court did not make a separate award under the PHA as it took the view that the financial loss resulting from the harassment was subsumed in the personal injury claim for consequential loss and damage. The facts in this case were quite unusual, as the claimant had a history of psychiatric illness that the employer was aware of, and she had been subjected to a relentless campaign of behaviour designed to cause distress.

Comment

In practice it is unlikely that many claims will succeed, except in the most extreme situations. In addition, the employment tribunal does not have jurisdiction to hear such claims. A claimant will be at risk of costs where proceedings are brought in the High Court, and this may prove to be dissuasive.

Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34

Green v DB Group Services (UK) Ltd [2006] EWHC 1898 (QB)

By Tania Stevenson, professional support lawyer