Harassment and bullying: a new route for employees: Majrowski v Guy’s and St Thomas’ NHS Trust

This case hinged on whether the Protection from Harassment Act 1997 (PHA), which was introduced primarily to combat stalkers, could be applied to harassment in the workplace. The House of Lords has unanimously held that it could and that, more importantly, an employer can be vicariously liable under the PHA for harassment committed by an employee in the course of their employment.

Unfair treatment

Majrowski was unhappy with the way his manager treated him. He claimed that she bullied and intimidated him, was rude and abusive to him in front of other employees, was excessively critical and isolated him by refusing to talk to him. He felt that the treatment was because he was gay. The trust investigated and upheld his complaint of harassment. This all happened in 1998, some years before the Employment Equality (Sexual Orientation) Regulations 2003 came into force. He did not bring any proceedings against the trust at the time.

In 1999, Majrowski was dismissed from the trust (for unconnected reasons). Nearly four years later, in 2003, he brought a County Court claim against the trust (not against his manager) for distress and anxiety caused by the harassment. His case was that his manager was at all times acting in the course of her employment and, therefore, the trust was vicariously liable for the manager’s breach of the PHA.

The PHA prohibits a course of conduct (on at least two occasions) that amounts to harassment or which a person knows, or ought to know, amounts to harassment. Harassment is not defined, but includes “alarming [a] person or causing [a] person distress”. An employer can be vicariously liable for the acts of its staff where these occur “in the course of employment”. The courts have interpreted that phrase widely.

Vicarious liability

The question for the House of Lords in this case was whether an employer could be vicariously liable under the PHA. It confirmed that such a claim could be brought under the PHA. Majrowski’s claim is now going to a full trial to establish whether he was in fact harassed by his manager, as alleged, in the course of her employment.

Key points

  • Harassment on any grounds is covered by the PHA – and does not need to be on a ground protected by the discrimination laws.  

  • There is no statutory defence available to employers under the PHA as there is for most discrimination claims.

  • Claimants only have to show ‘anxiety’ or ‘distress’, which is a lower hurdle than making out a personal injury claim. 

  • Claimants have six years to bring a claim.

What you should do

  • Deal with any allegations of harassment quickly and fairly. Ensure all staff understand the need to seek HR support when dealing with difficult members of staff, or when personality clashes start to develop. 

  • Ensure anti-harassment/bullying policies prohibit harassment/bullying on any grounds (and not just on grounds protected under the discrimination legislation).

  • Ensure there is a good level of awareness among managers as to the broad definition of what can constitute harassment in the workplace, and that all staff are aware that any form of harassment (on whatever grounds) is unacceptable. Be clear about the penalties for anyone who engages in harassment.

Rating: Three out of five stars

Rating system

Our rating system is designed to help busy HR professionals prioritise their reading. Each case is rated from one to five stars: the more essential it is that you know about it, the more stars it will have.

By Joe Glavina, legal director, and Phil Williams, associate, Addleshaw Goddard

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