It was hailed as the new anti-stalking law.Â
But the Protection from Harassment Act is not just aimed at Peeping
Toms, as employers may find out to their cost.Â
By Neil Addison
Most employers will have heard of the Protection from Harassment Act 1997,
often referred to as the stalking law. They would be wrong, however, to assume
the act has no relevance to the workplace.
Although the act was certainly passed primarily to deal with the criminal
problem of stalking, it is certainly not limited to that type of behaviour.
This was made clear in the High Court case of DPP v Selvanayagam (The Times, 23
June 1999) when Mr Justice Collins said, "Whatever may have been the
purpose behind the act, its words are clear, and it can cover harassment of any
sort".
The concept of workplace harassment is, of course, well known. Until now
cases of harassment which have reached the courts have been brought under
either the Sex Discrimination Act 1975 or the Race Relations Act 1976.
But there are limitations on how far these pieces of legislation can protect
employees. The complainant has to prove less favourable treatment on grounds of
his or her sex or race. Where, for instance, the person doing the harassing is
the same sex and race as the victim, it is far more difficult to bring a case.
There is no such restriction with the Protection from Harassment Act. An
action for damages can be brought regardless of whether the harassment in
question is racial, sexual, homophobic or animated by dislike or megalomania.
The act makes harassment both a criminal offence and a civil tort. It
provides for injunctions to be granted to stop actual or anticipated
harassment. In addition, damages may be awarded for, among other things,
"any anxiety caused by the harassment and any financial loss resulting
from the harassment".
Take landmark cases such as that of John Walker, the social worker who was
awarded £175,000 after suffering two stress-related breakdowns.
The important point is the damages were awarded after the victims had
suffered psychiatric injury and were designed to compensate for the injury, not
the harassment and distress itself.
However under the Protection from Harassment Act it is now possible for
courts to award damages for harassing behaviour without the employee having to
prove actual psychiatric injury. In assessing the appropriate level of damages
in such cases, the civil courts would be likely to look at the types of awards
which have been made by tribunals in racial and sexual harassment cases.
The core of the Act is section 1, which says a person must not pursue a
course of conduct which:
– Amounts to harassment of another,
– He knows or ought to know amounts to harassment of the other.
It goes on to say that for the purposes of section 1, the person whose
course of conduct is in question ought to know it amounts to harassment of
another if a reasonable person in possession of the same information would
think the course of conduct amounted to harassment of the other.
Defence
The act also provides a defence – the course of conduct will not be against
the law if the person who pursued it shows:
– It was pursued for the purpose of preventing or detecting crime,
– It was pursued under any enactment or rule of law or to comply with any
condition or requirement imposed by any person under any enactment, or
– In the particular circumstances the course of conduct was reasonable.
Section 7 of the Act gives some more specific definitions. It says
references to harassing a person include "alarming the person or causing
the person distress". A "course of conduct" must involve conduct
on at least two occasions. Finally, "conduct" includes speech.
The concept of a course of conduct is fundamental to the operation of the
act: one incident of harassment or loss of temper, however serious, would not
be sufficient to justify a claim for damages under it. It is, however,
important to note that the act does not say that two incidents IS a course of
conduct.
There must be some element of continuity between the incidents before a
course of conduct can be established – the further apart the incidents are, the
less likely they are to constitute a course of conduct, as was illustrated in
the case of DPP v Lau (The Times, 29 March 2000).
The time limit for bringing a claim is six years (under section 6 of the
act), in contrast to the three-month time limit for bringing claims for racial
or sex discrimination before an employment tribunal. This means the act could
be used as a vehicle for bringing harassment claims which would otherwise be
out of time.
Any claims would be brought in either the High Court or, more likely, county
court rather than before an employment tribunal. However, as the act came into
force on 16 June 1997, any claim for damages could relate only to behaviour
after that date.
Internal discipline
Since harassment as defined in the Act is now both a crime and a tort, employers
must be aware of this from the point of view of internal discipline and codes
of conduct. If an employee is found to be carrying out a course of conduct
which constitutes harassment of another employee then prima facie such conduct
would be a disciplinary offence and would justify a formal warning and possibly
dismissal.
If the employer takes no action to deal with the situation, that inactivity
would justify the employee resigning and claiming constructive dismissal at
tribunal.
Bullying is increasingly recognised as a problem in the workplace, often
coming from a senior member of staff in the guise of in-your-face, macho
management.
A survey by the TUC in 1999 estimated that up to 5 million people could be
the victims of bullying at work, and 38 per cent of all calls to a TUC helpline
related to allegations of workplace bullying.
A similar survey by the Unison suggested in 83 per cent of bullying cases
came from the victim’s line manager – which is perhaps hardly surprising.
Managers, after all, have the greatest opportunity to engage in bullying
behaviour and a subordinate who is a victim can be intimidated into silence by
fear for their job.
In one, clearly extreme, case quoted by the TUC, employees were subjected to
a campaign of humiliation, verbal abuse and swearing by their manager, with
employees who did not meet sales targets being made to stand in the corner
wearing a dunce’s hat.
Personal remarks
A more common example quoted in the book Harassment Bullying and Violence at
Work, published by the Industrial Society, mentions the case of a female doctor
who was subjected to constant insulting and personal remarks from female
colleagues after they learnt she was living in a same-sex relationship.
What exactly would be the vicarious liability of employers in cases like
these under the Protection from Harassment Act is still open to question.
Under the race and sex discrimination legislation the liability of employers
is clear and absolute, but it is far less clear in tort cases. The issue would
probably be resolved by looking at the employer’s normal duty of care to
employees.
If an employer encouraged or condoned harassing or bullying behaviour by employees
towards another employee they would almost certainly find themselves
vicariously liable for a claim under the act, as long as the harasser was
acting in the course of his or her employment. This would be particularly so if
the person engaging in the behaviour was in a supervisory role.
The defence to such a claim would hinge on the issue of reasonableness. The
sort of language and behaviour that might be reasonable in a building site, for
example, would be different to that reasonable in a school.
It is clearly reasonable for supervisory managers to discipline or criticise
staff, but it would be difficult to argue that it would be reasonable for this
to be done by shouting or publicly humiliating staff – especially if such
behaviour was regularly directed at particular employees.
Employers have for long been aware of the need to have policies and
procedures to prevent and deal with racial and sexual harassment. What the
Protection from Harassment Act does is make it essential for these policies to
encompass all forms of bullying and harassment regardless of their motivation.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
The law recognises a general right not to be harassed and that applies in
the workplace as much as anywhere else.
Neil Addison is a practising barrister, co-author of Harassment Law &
Practice published by Blackstone Press, and the Internet site
 www.harassment-law.co.uk
