The claim below appears to set the bar lower for the nature of behaviour in Protection from Harassment Act claims that give rise to liability.
Facts of the claim
A member of staff was at the very least singled out for a hard time by their manager. The employer did not contest vicariously liability for the manager’s actions if a breach of the Protection from Harassment Act 1997 was proved.
The claimant had an event free and satisfactory two years at work before the new manager arrived. Within two months of the new manager arriving, she was suffering from depression for which she was prescribed medication, underwent counselling and never returned to work.
Within that two month period, the manager had sought to obtain information from the claimant’s colleagues about her, including about her private life, in the view of the claimant “to make my life more difficult at work”.
There were uncontested indications of callousness: “She was smiling all the time, obviously enjoying the situation”.
When, at the suggestion of a senior manager, the appellant set out her concerns in a letter to her manager and handed it to her, she tore it up without reading it and put it in the bin. When she said the senior manager had suggested the letter, the manager replied: “I’m not interested.”
All this took place in the context of other incidents in which she was victimised or singled out for reprimands on issues about lateness, travel arrangements and unpaid wages in a way in which no one else was reprimanded for similar actions.
The Judge at first instance accepted, without qualification, that all this had happened and that this was a one-way street of hostile conduct by the manager towards the employee. The employee had shown reasonableness on her own part but none had been demonstrated by the manager.
However, at first instance the Judge found the claimant failed to prove the case because he said, quoting from our case of Conn -v- Council & City of Sunderland, that the conduct must be of an order “that would sustain criminal liability and not only civil liability”.
He found that no sensible prosecuting authority would pursue these allegations criminally and, even if the claimant were to have brought a private prosecution, it would likely be brought to an early end as an abuse of process.
The Court of Appeal said this analysis did not go far enough.
While it was right that the conduct should be of an order that would sustain criminal liability, the Judge had to analyse what conduct did cross the line into potential criminal liability. The answer to that is in the case of Majrowski at paragraph 30:
“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 boundary 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 order which would sustain criminal liability under section 2.”
Baroness Hale added at paragraph 66: “A great deal was left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive, unacceptable behaviour.”
So the test was what was “oppressive and unacceptable”?
Even the claimant in this case accepted that an occasion when she was told to “f*** off” by her manager was part of every day working language. This has echoes of the unsuccessful case of Conn.
However it was undisputed that there were times where the claimant was singled out by her manager for what amounted to victimisation.
The Court of Appeal reminded themselves that in their most recent case on point Ferguson -v- British Gas Trading Ltd [2009], they had accepted that it was possible that manically repeated unnecessary chasers for gas bills without good reason could potentially amount to a civil wrong or crime under the Act. The Judge should have repeatedly asked himself the question was the conduct “oppressive and unacceptable”. That was the clue as to whether it could amount to a civil wrong or crime.
The Court of Appeal found that the straightforward and unchallenged account of victimisation and demoralisation and reduction of a substantially reasonable and usually robust woman to a state of clinical depression was not simply an account of the ordinary banter of life or just “unattractive” and “unreasonable” conduct on the wrong, non-actionable side of the lines drawn above by Baroness Hale and Lord Nichols respectively.
It self-evidently crossed the line into conduct that was “oppressive and unreasonable”.
It is not the right question to ask if a prosecutor would be reluctant to prosecute but the question was whether the conduct is “of an order which would sustain criminal liability”.
In this case, Lord Justice Kay considered that, in the event of a prosecution, the proven conduct would be sufficient to establish criminal liability.
He found for the claimant.
He added a postscript that he acknowledged that there were increasing numbers of harassment claims possibly since Hatton -v- Sutherland had made straightforward common law stress claims more difficult to win.
He sounded a warning that he did not think this case was a typical claim and thought that the circumstances were “extraordinary”. He did not expect many workplace cases would give rise to this type of liability.
Veakins -v- Keir Islington Ltd [2009] EWCA Civ 1288