It
was hailed as the new anti-stalking law. But the Protection from Harassment Act
is not just aimed at Peeping Toms, as employers may find out to
their cost. 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, or
–
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 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.
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
