On 12 July the House of Lords gave judgment in the case of Majrowski v Guys & St Thomas' NHS Trust. Nick Hanning looks at the significant implications for employees and employers.
Bill Majrowski started work as a clinical audit coordinator for the Guy's and St Thomas's NHS Trust in November 1996. Majrowski claimed that his line manager, a Mrs Freeman, 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.
In April 1998 Majrowski made a formal complaint of harassment against Freeman. The Trust investigated this in accordance with its anti-harassment policy and found he had been subjected to homophobic harassment.
In 2003, he brought proceedings against his former employers, arguing that the Trust was vicariously liable for what he alleged was harassment prohibited by the Protection from Harassment Act 1997.
The Protection from Harassment Act
Although aimed mainly at preventing stalking, Section 1 of the Act prohibits a person from pursuing a course of conduct which he knows, or ought to know, amounts to harassment of another. Section 3 provides that the victim of harassment may bring civil proceedings for an injunction as well as for damages.
A 'course of conduct' is defined by the Act as comprising at least two incidents. The Act contains no definition of harassment beyond confirming that it 'includes causing distress or alarm'.
Findings and implications
The House of Lords has confirmed that an employer is strictly liable for harassment (within the meaning of the Act) committed by staff during the course of their employment, that is to say where the harassment is sufficiently closely connected to their work. There is no doubt that this decision extends the remedies available to an employee who has suffered harassment at work.
Under the Act damages may be awarded for distress and anxiety, so there is no requirement to prove a psychiatric injury as is the case with a 'normal' personal injury claim. Nor is there any requirement to show that any injury suffered was reasonably foreseeable, which has been a major hurdle for those bringing claims for occupational stress or bullying.
The Act allows claims to be brought up to six years after the events complained of, which compares favourably with the three year period for 'normal' personal injury claims and with only three months for most discrimination claims.
Indeed, the Act offers a potentially attractive alternative to the Employment Tribunal for claims for race, sex and other prohibited discrimination. As well as the longer time limit, a claimant would expect to recover costs in civil proceedings contrary to the usual employment tribunal position (although he also faces liability for costs if he fails).
In addition, the employer is denied the benefit of the statutory defence to discrimination claims. Under discrimination legislation, if an employer can show he took reasonable steps to prevent the discrimination, he is absolved from liability. Under the Act, this is not true, as liability is strict.
More broadly however, the Act is itself non-discriminatory, so that targets who are harassed because they wear glasses, have red hair or are short, may be able to bring claims whereas previously they were unprotected.
Not a panacea
On the other hand, talk of 'floods of claims' and an 'intolerable burden on employers' risks exaggeration. The Act offers statutory defences, most notably where the employer can show that it was reasonable to pursue the conduct. So, disciplinary action or proper management of staff is unlikely to lead to a successful claim.
Although the Act describes harassment in very wide terms, employees will need to heed Lord Nicholls' suggestion that conduct which is simply 'unattractive or unreasonable or regrettable' is insufficient, and the behaviour must be 'oppressive and unacceptable'.
Most of us find aspects of our working life to be distressing and there will frequently be times where relationships are strained. It seems to be clear the courts will interpret the Act as not intended to apply to the normal ups and downs of working life, and that claims arising from trivial grievances will not succeed.
Overall the decision is both logical in terms of an employer's generally accepted responsibility for the actions of staff and consistent with the professed aim of the Act. Indeed, the decision should be seen as a positive one. One of the policy reasons for imposing vicarious liability on employers is because it encourages employers to impose good practice on their staff.
Most employers already have anti-harassment procedures in place, but policies achieve nothing unless they are implemented in a positive fashion. If this decision encourages employers to take steps towards eradicating harassment in the workplace altogether that can only be for the good of all of us.
- Nick Hanning is a legal executive advocate and associate with Reynolds Williams in Poole who acted for Bill Majrowski, www.reynoldswilliams.co.uk