No protection from harassment
A Court of Appeal decision in a bullying claim taken under the Protection from Harassment Act has made stress at work claims even more difficult to successfully pursue writes Keith Patten.
Whereas the 2006 case of Majrowski -v- Guy's and St Thomas' NHS Trust confirmed that employers can be vicariously liable for harassment of an employee by another, the case of Conn -v- City of Sunderland indicates that only cases where that harassment involved unacceptable and probably criminal behaviour on two or more occasions can succeed.
Billy Conn had worked as a paver as part of the same team all his working life. He alleged he had been subjected to bullying behaviour by his supervisor on five separate occasions. These involved shouting and swearing at Mr Conn and other workers.
The last incident included a threat of violence, after which Mr Conn went off work and never returned. He effectively suffered a breakdown.
Thompsons, instructed by Mr Conn’s union the GMB, made a claim in what is known as common law negligence, alleging that the breakdown was a reasonably foreseeable consequence of the supervisor’s conduct, and also under the Protection from Harassment Act alleging that the five incidents amounted to unlawful harassment.
The claim was partially successful at the first court hearing. The judge found that two of the five alleged incidents were serious enough to make the risk of injury reasonably foreseeable. Therefore the employer was negligent.
The first of these incidents involved aggression by the supervisor against Mr Conn and two colleagues. The supervisor had asked them to shop workmates who had been leaving early. When they declined, he became aggressive and threatened to “punch out the cabin windows”.
This was an odd threat, apparently directed against the employer’s property rather than an individual. However, it was made in the context of his loss of temper and therefore was an act of aggression against the employees.
The second incident, the judge accepted, involved further aggression by the supervisor against Mr Conn. The altercation culminated in the supervisor threatening to give the claimant “a good hiding”.
The judge also found the two incidents amounted to harassment under the Protection from Harassment Act and that they had caused the claimant temporary anxiety, for which he awarded £2,000.
The defendants appealed.
The Court of Appeal
When the case came before the Court of Appeal (CA) in 2007 it was clear that the judges considered it to be a trivial matter that should not result in compensation.
If the incident involving the threat of violence to the property was not found to be harassment, the whole case would fall.
Stress was laid on remarks made in passing by one of the Law Lords in the Majrowski decision as to the kind of conduct that would qualify as harassment under the Act in workplace cases.
This was that the conduct must go beyond that which is “unreasonable and unattractive” to be “oppressive and unacceptable”. Such conduct would need to be serious enough to give rise to criminal liability under the Act.
One of the three CA judges was clear that the incident involving the threat to punch out the cabin windows did not cross that boundary. He did not consider it was even close to doing so, though he did concede that the incident would have been unpleasant for Mr Conn.
This judge said that, because it involved a threat to property, not to an individual, and was directed at Mr Conn and two workmates rather than specifically at Mr Conn, it was not conduct likely to attract criminal proceedings and could not, therefore, attract civil sanction under the Protection from Harassment Act.
Even the second incident that the original judge had found for, which did involve a threat of violence against Mr Conn, was “not free from doubt” as to whether it had crossed the line.
What is criminal under the Act is the course of conduct. There is no requirement that each individual incident is intrinsically criminal and indeed it often will not be. In fact it is because the conduct, which amounts to harassment, was often not intrinsically criminal that the Act was passed in the first place.
Focusing on the criminality of the individual actions cannot, therefore, be the correct approach. In any case, the threat to commit criminal damage is intrinsically criminal.
The distinction between criminal damage and a threat to the person seems artificial – what needs to be looked at is the overall conduct in context, and that was a supervisor who had clearly lost control of his temper.
Why that was not “oppressive and unacceptable” is not clear.
Secondly, the fact that there were two other workmates present cannot be conclusive of whether or not the conduct was targeted at the claimant. Again, context must be relevant. It is a bizarre world in which supervisors can threaten with impunity so long as they always make sure they threaten at least two people at once.
What is perhaps worse is the attitude of the Court of Appeal to the final incident, which did involve a clear threat of violence directed at the claimant.
None of the three judges were prepared to commit to a view that this was harassment, though one did not rule out that it was.
The third CA judge offered little in the way of a considered judgment. He instead vented his fury that his court had been bothered with such matters. He said: “What on earth is the world coming to”, if such incidents [the one involving the threat against property] are taken as giving rise to liability in damages?
It would of course be a rather better world and one in which employers’ “respect at work” policies have some meaning. But what this comment clearly indicates is the Court of Appeal’s agenda was to take the Protection from Harassment Act out of the employment context.
Based on Conn it is hard to see how most workplace cases taken under the Act will succeed.
And it is hard to see how Majrowski would have stood a chance of success if the court had decided it according to whether the acts of alleged harassment were indeed harassment, as opposed to just deciding the legal issue of whether or not an employer could be vicariously liable.