Protection from Harassment Act and vicarious liability: a new way forward?

Two cases in the Court of Appeal have given us some guidance on how courts will allow an employee suffering from a stress-related illness to use the Protection from Harassment Act 1997 to succeed in a claim.

In Banks -v- Ablex Limited (2005) EWCA Civ 173 the Court of Appeal on 24th February dealt with an appeal against a decision dismissing a claim for damages on the basis that the employer was not vicariously liable for the aggressive conduct of an employee towards the claimant, and that there was no negligence in not taking action to avoid such conduct. The employee had allegedly sworn and shouted at the claimant and assaulted her. The trial Judge had held that the employee’s conduct did not amount to harassment and that it would not be reasonable to hold the employers liable for an act of which he had no knowledge or control.

The Court of Appeal found that the trial Judge was entitled to conclude that there was nothing that could be described as harassment, that the employee’s conduct did not amount to harassment and, for a claim to succeed under the Act, that it was clear that the same person had to be the victim on at least two occasions when harassment was alleged to have occurred. There was no reason to believe that the employee would not heed the warning given to him previously, so there was no reason for the employers to do more to protect other employees. Even if a further eruption could have been foreseen, there was no reason to believe that it would endanger the mental health of the claimant.

A more interesting point arose in the Court of Appeal a few days later when they dealt with the case of Majrowski -v- Guy’s and St Thomas’s NHS Trust (2005) EWCA Civ 251 on 16th March 2005.

The court had to consider firstly whether an employer could be considered vicariously liable in civil proceedings for a breach of statutory duty by their employee and secondly whether there was any reason, whether by construction or interpretation of the Act or on policy grounds, to hold that this specific statutory duty does not impose liability on the employer for their employees breach.

All three Judges agreed that employers are vicariously liable for breaches of statutory duty by an employee. Two of the three Judges said there were no grounds for saying that the 1997 Act should be excluded from this principle. Lord Justice May set out, at paragraphs 80-85 of the judgment, the control mechanisms within the Act that would hold back the floodgates of cases and which would be a guide to us in assessing whether we can proceed with a claim under the Act.

Please also note that the limitation period under the 1997 Act is six years rather than three.

In all bullying, harassment and stress cases we must therefore now look carefully at this judgment in order to decide whether the prospects of success may be stronger than under the strict foreseeability test laid down in Sutherland -v- Hatton and Barber -v- Somerset Council.