Majrowski – vicarious liability under the Protection From Harassment Act 1997

In July this year, the House of Lords unanimously decided that employers can be vicariously liable for harassment committed by its employees in the course of their employment[1].   Employers will be concerned that it will open the floodgates to claims. As Baroness Hale said[2] “The 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 become unduly defensive or protective.”

The decision is based on the wording of section 10(1) of the Act, a section dealing with the limitation provisions in Scotland.  In respect of date of knowledge it provides “the date on which the pursuer in the action became…aware that the Defender was a person responsible for the alleged harassment or the employer or principle of such a person.”  It was held that it was therefore the intention of Parliament that the principle of vicarious liability would apply. 

The tenor of the decision in Majrowski[3] is unusual, as shown in the speech of Lord Hope; “Had it not been for the fact that the wording of the act itself provides the answer, I would have found it hard to disagree with the reasons which Scott Baker LJ gave in his dissenting opinion in the Court of appeal for answering this question [of whether vicarious liability applies to Act] in the negative” and of Baroness Hale who states “as we are not policy makers and legislators, but judges construing the language used by Parliament, in the context of the general law of vicarious liability of which Parliament must be presumed to have been aware, I am driven to conclude…that this appeal should be dismissed.”

Their concerns mainly centred on floodgates arguments.  There is no requirement of forseeability of psychiatric harm under the Act, indeed there is no requirement for a recognised psychiatric injury, section 3(2) of Act provides that damages may be awarded for anxiety caused by the harassment.  There is no need for a psychiatric diagnosis.  Anti-bullying/harassment policies or training do not provide a defence.  The Claimant has only to prove:

(1)   A course of conduct.  That can be shown by conduct on at least 2 occasions. 

(2)   The conduct must be targeted at an individual and calculated (in an objective sense) to produce alarm or distress and which is oppressive and unreasonable[4]. 

(3)   The conduct must be so closely connected with the acts the employee is authorised to do that it may be fairly and properly regarded as done by the employee in the course of his employment. 

Lord Hope said the following in Majrowski[5]: “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 boundaries 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”.

So what will the courts find to be sufficiently grave to found liability? 

In Woolford v DPP[6], after the breakdown of a marriage, a husband delivered a card to his wife’s new address which read "Congratulations on your new house, love Daddy". He returned to the former matrimonial home and gained entry to it, despite the fact that the wife had changed the locks and later that day he left a message on his wife’s mobile telephone stating that he had been to their former home and forgotten to turn the electricity back on. He left a further message on the same day on the wife’s telephone saying, "Welcome to the neighbourhood...my girlfriend lives around the corner".  That was a course of conduct sufficient to sustain criminal liability.

In the recently decided first instance case of Helen Green v DB Group Services (UK) Ltd [2006] EWHC 1898, Mr Justice Owen found that what was described as “a relentless campaign of mean and spiteful behaviour” designed to cause the Claimant distress by colleagues amounted to harassment for the purposes of Act.  The conduct included excluding the Claimant from group activities, ignoring her when she spoke, laughing when she walked past, removing her name from circulation lists of internal documents, and making raspberry noises with every step she took.

The Defendant argued that the conduct was nothing to do with the Claimant’s work of the work of those bullying her, but that their employment simply provided the opportunity for them to behave in the way that they did.  That argument was rejected on the basis that it directly affected the Claimant’s working environment and some elements (such as removing the Claimant’s name from internal circulation lists) involved work those bullying were required to undertake.  The judge also found for the Claimant on the common law tests.

It is likely that conduct which would not give rise to a foreseeable risk of psychiatric injury will be sufficient to found a harassment claim.  In addition to the small claims that could be brought, claims brought under the Act for stress at work are likely to be more successful than claims under the common law have been.     

Lisa Sullivan, Cloisters, 1 Pump Court, Temple, London EC4Y 7AA

17^th August 2006