This is a decision of the High Court which considered the legal test for establishing a claim of harassment under the Protection from Harassment Act 1997 (PHA). Under the PHA, employers can be held to be vicariously liable for acts of harassment carried out by their employees.
For a claim of harassment to succeed, the claimant must satisfy the threefold test set out in PHA. To constitute harassment, the conduct must:
- Amount to a course of conduct (two or more incidents)
- Be targeted at an individual
- Be calculated to produce alarm or distress.
Type of conduct
Case law has provided further guidance on the type of conduct that constitutes harassment. The House of Lords held that the conduct must be “oppressive and unacceptable” (Majrowski v Guys and St Thomas’ NHS Trust). Subsequently, the Court of Appeal (in Veakins v Kier Islington) held that for conduct to constitute harassment under the 1997 Act, it must also be of a type that would “sustain criminal liability”. Taken together, these decisions set a high hurdle for claimants to overcome.
Donna Rayment worked for the Ministry of Defence (MoD) at the Honourable Artillery Club, as a driver for the commanding officer. She had a difficult relationship with her line managers and was described by the High Court as a “challenging employee”.
Rayment brought a claim for harassment based on a number of incidents which took place during the period from April 2004 to June 2005. The allegations included that she had been told that an administrative error meant she had no job and must repay a month’s salary, the decision to discharge her from the Army while on stress-related sick leave; and the re-posting of pornographic pictures in the toilets after she had removed them.
The High Court found that three of the incidents did amount to harassment as they satisfied the oppressive and unacceptable test. Interestingly, in reaching its decision that Rayment had been subject to harassment, the High Court did not consider whether the conduct would sustain criminal liability.
In failing to explicitly consider whether the conduct would sustain criminal liability, the High Court appears to have applied a lower threshold for establishing a claim of harassment than previously set out by the Court of Appeal, potentially making it easier for a claim to succeed.
However, this is only a High Court decision and the previous decisions of the House of Lords and Court of Appeal remain binding. Given the absence of consideration by the High Court of the criminal liability test, there is an opportunity for the MoD to appeal the High Court’s decision. We should await any further judgment.
What you should do
Although this case casts doubt on previous guidance, it is a helpful reminder of the legaltest for harassment.