Bullying & Harassment
Two recent bullying cases highlight the different legal approaches that can be adopted in pursuing them. Although both claimants succeeded, stress cases remain notoriously difficult to win.
Majrowski v Guy’s & St Thomas’ NHS Trust
Mr Majrowski, a clinical audit coordinator, alleged that his departmental manager had harassed him. He said she was excessively critical of him; that she refused to talk to him; that she was rude and abusive to him in front of other staff; and that she set unrealistic targets for his performance. And he alleged that her attitude was fuelled by homophobia.
Rather than making a claim for negligence (because of evidential and limitation problems), however, Mr Majroswki claimed that the hospital was vicariously liable for breach of a statutory duty imposed on his manager under the Protection from Harassment Act 1997.
The county court said he could not rely on the Act, but the Court of Appeal disagreed. And the House of Lords has now confirmed that employers can be vicariously liable for a breach of the Act by one of their employees, if it can be shown that they were acting “in the course of their employment”.
Green V DB Group Services (UK) Ltd
Helen Green worked as a company secretary assistant for Deutsche Bank from 1997 to 2001. She said that, during that time, she was subjected to psychiatric injury because of the “offensive, abusive, intimidating, denigrating, bullying, humiliating, patronising, infantile and insulting words and behaviour” of several of her colleagues.
On 7 November 2000 she was admitted to hospital where she was diagnosed with a major depressive disorder. She returned to work the following March, but suffered a relapse in October. She did not return to work after that and her employment was terminated in September 2003.
She claimed that her employer had been negligent and in breach of contract, as well as in breach of the Protection from Harassment Act. The High Court judge agreed, awarding her £800,000, mainly for loss of future earnings.
Although the case of Majrowski may provide claimants with another potential avenue to explore in bullying / harassment claims, it will not help in the majority of stress cases. That is because they still have to get over the hurdles of foreseeability laid down by the Court of Appeal in Sutherland v Hatton, and reaffirmed by the House of Lords in Barber v Somerset County Council.
In order to rely on the Protection from Harassment Act, the claimant has to show that the harasser either knew or ought to have known that their conduct amounted to harassment. Although the Act does not define harassment, the legislation makes clear that it is conduct targeted at an individual which is calculated to alarm that person or cause them distress, and which is oppressive and unreasonable.
This turned out to be a hurdle too far in the Court of Appeal case of Banks v Ablex Ltd in which the Court said that Mrs Banks had to show that the conduct (which included an alleged assault) was intentional and that her harasser knew what he was doing.
The Green case also highlights the importance of foreseeability. Like Mr Walker (Walker v Northumberland County Council) and Mr Barber (Barber v Somerset County Council), Ms Green was diagnosed with a depressive illness and subsequently returned to work.
As a consequence of the first breakdown, the court said that she was at a significantly increased risk of a further episode of severe depression. The bullying and harassment to which the first breakdown could be attributed was a material cause of the second breakdown, and the employer should have foreseen that.