House of Lords confirms vicarious liability can apply against employer
The House of Lords has confirmed that an employer can be vicariously liable for harassment by one of its employees under the Protection from Harassment Act 1997.
The claimant had felt his manager bullied and intimidated him, was rude and abusive to him in front of other staff, and was excessively critical of his timekeeping and work. Further, the manager imposed unrealistic performance targets with threats of disciplinary action if he failed to meet them and isolated him by refusing to talk to him. He felt the treatment was fuelled by homophobia; he was gay.
He made a formal complaint of harassment against his manager. His employer found harassment had occurred. His claim was entirely based on his employer’s vicarious liability for their employee’s breach of the above statute.
In line with all vicarious liability cases, the House of Lords had to be satisfied the wrong was closely connected with acts the manager was authorised to do, in order to find the employer liable for those acts (see cases such as Lister -v- Hedley Hall, Fennelly -v- Connex ). As her actions occurred in her performance of management they were able to do that.
It followed that the employer was vicariously liable for her actions if they could be held objectively to the harassment. It was held that these actions did amount to harassment, certainly of the sort of nature from which a claimant may be able to apply for an injunction under the above Act .
The House of Lords found for the claimant.
They reassured those who feared the floodgates had opened for this sort of claim:
“Courts would have in mind that irritations, annoyances, even a measure of upset arose at times in everybody’s day to day dealings with others. Courts were well able to recognise the boundary between conduct that was unattractive ,even unreasonable and conduct which was oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct be of an order which would sustain criminal liability under section 2 of the Protection from Harassment Act 1997”.
Some important points to note are:
1. It is not necessary to prove foreseeability on the part of the employer that the harassment would cause any injury or even knowledge that it is taking place. This is in direct contrast to stress at work claims.
2. There is no need to prove a prescribed psychiatric injury. You need only prove the claimant has suffered stress / anxiety.
3. The limitation period under the Act is six years.
4. Damages for anxiety under the Act are “ likely to be modest” said the House of Lords. If cases fall solely under the Protection from Harassment Act, they will not be personal injury cases and therefore the protocol will not apply. If the total value is less than £5000 it may be necessary to bring them in the small claims court. This then gives rise to questions whether CCFA insurance cover is applicable; a question for supervisors and managers.
5. If the harassment is ongoing consideration should be given as to whether the client should be told to make an application for an injunction. Again this is something to be discussed with a manager and done with caution as the Claimant would have to return to the work place after such an application.
Majrowski -v- Guy’s and St Thomas’s NHS Trust, UKHL 34