The Court of Appeal has significantly raised the bar on what constitutes harassment under the Protection from Harassment Act 1997. In doing so, it overruled a successful Thompsons’ trial.
At first instance a trial Judge had found the following actions to amount to a course of conduct of harassment under the above Act.
1. A supervisor shouted aggressively at the claimant and to colleagues to find out who had been leaving work early. When they refused to tell him, he threatened to punch the window out of the cabin.
2. When he later thought he was getting the “silent treatment” by the claimant, he threatened to give him “a good hiding”.
To prove harassment , you need to show conduct:
a) on at least two occasions
b) targeted at the claimant
c) calculated in an objective sense to cause alarm or distress
d) which is objectively judged to be oppressive and unreasonable (Owen J: Green -v- DB Group Services (2006) EWHC 1899 QB)
The Court of Appeal restated the test from Majrowski (Lord Nicholls) of asking whether the conduct in the first example above crossed the line from unfortunate to “unreasonable and oppressive”. Ward LJ asked about the first incident: “What is oppressive about that?”
The court then implied that, in creating a crime under the Protection from Harassment Act, the statute requires criminal actions in the generally understood meaning to show proof of harassment. Again Ward LJ asked of the first incident: “What crime is that?”
The conduct in the first instance did not come close to the threshold of the type of conduct to give rise to liability under the Act, it was stated. It was also found that the threat to punch out the windows being directed at three people, was not, as required above, targeted at the claimant. As his colleagues had said they did not feel threatened, this reinforced the judgment that this was not harassment.
Finally Ward LJ asked: “What kind of country will we have if workmen can claim damages whenever a supervisor loses his temper?”
Because the court failed to find the first action amounted to harassment, it did not feel the need to rule whether the second incident was harassment because no “course of conduct” could then be made out anyway. Nevertheless the court was not prepared to find as a matter of fact that the threat to give someone “a good hiding” was definitely harassment.
The Court of Appeal is putting down a marker about the sort of conduct that can and cannot be described as harassment for a claim under the Act. Such conduct will need to be very serious. Previous cases of excluding and marginalising a claimant now seem to be wrongly decided and to fall well short of the threshold requirement of criminality.
The sort of case of “they didn’t support me” or “they made snide remarks about me” seems to have no prospect of getting near the threshold for harassment.
The Court of Appeal has obviously picked this case as an example to make such claims a lot harder.
Conn -v- Sunderland City Council, CA.