The case law takes a broad approach to the application of the Protection from Harassment Act 1997, says employment lawyer Gemma Hay.
Protection from harassment
What is the Protection from Harassment Act 1997?
The Protection from Harassment Act 1997 prohibits the pursuit of a “course of conduct which amounts to harassment of another”. Harassment is conduct that causes alarm or distress, and a course of conduct must involve such conduct on at least two occasions. The Act was originally introduced to deter stalkers but it also applies to workplace harassment.
How does it apply to the workplace?
The landmark decision where the Act was applied in an employment context was Majrowski v Guy’s and St Thomas’s NHS Trust in 2006. Mr Majrowski claimed that he had been harassed at work by his line manager and the House of Lords ruled that the employer was vicariously liable for the behaviour of the manager who harassed him.
Why was the Majrowski case so important?
The decision was significant as it effectively extended the claims that an employee could bring against their employer if they felt that they had been the victim of harassment. Before this case, an employee was restricted to bringing claims of discrimination and/or personal injury, both of which present considerable legal hurdles for the employee to overcome. Following Majrowski, employees can bring harassment claims where they have suffered alarm, anxiety or distress, even where there is no allegation of discrimination or personal injury.
What amounts to a course of conduct?
After this decision, there was some worry that the floodgates would open with employee harassment claims under the Act. However, in Sunderland City Council v Conn in 2008, the Court of Appeal effectively raised the bar for what amounts to a course of conduct by explaining that “the touchstone for recognising what is not harassment … will be whether the conduct is of such gravity as to justify the sanctions of the criminal law”.
Have the floodgates opened for claims under the Protection from Harassment Act?
Risks still remain for employers; they need to be aware not only of the implications of the Act in the context of workplace harassment, but, critically, of what amounts to a “course of conduct”. Two recent cases, discussed below, shed some further light on this key definition under the Act and appear to be broadening its scope.
Iqbal v Dean Manson Solicitors
Mr Iqbal was a solicitor who worked as a sole practitioner. Before setting up his own practice, he had previously worked for Dean Manson, a small firm of solicitors. Several years after leaving the firm, Mr Iqbal represented an individual who was being sued by Dean Manson in the county court. During the course of that litigation, Dean Manson sent three letters to Mr Iqbal making various allegations against him.
The Court of Appeal held that each of the letters was capable of amounting to harassment under the Act. This was because each letter was a deliberate attack on Mr Iqbal’s personal integrity and was designed to pressure him to cease acting for the individual or advise his client to agree to Dean Manson’s demands. The Court went on to find that, even had the first two letters not amounted to harassment, a course of conduct could be established by taking all three letters together.
Marinello v City of Edinburgh Council
Mr Marinello was employed by the City of Edinburgh Council as a community service assistant. In September 2005, he was signed off work with depression and did not return.
In October 2005, Mr Marinello lodged a grievance complaining of a course of conduct occurring in 2004 and 2005 that amounted to bullying and harassment by two of his superiors. Part of his grievance was upheld.
In March 2007, Mr Marinello was walking along the street in Edinburgh when a white minibus veered towards him. One of the superiors, against whom he had raised a grievance, was driving. He sounded the horn and gesticulated at Mr Marinello with a clenched fist.
The Inner House of the Court of Session held that:
- an interval of 17 months did not automatically exclude a connection in time between two events;
- the fact that the March 2007 incident occurred in public and the previous incidents had occurred in the workplace was of little significance, given that Mr Marinello’s workplace was frequently a public place; and
- the fact that Mr Marinello was not at work at the time of the March incident was of less significance than it might have been given that Mr Marinello was still employed by the council in the same department, under the same supervisors.
What is the importance of these cases for employers?
One principle that can be taken from the above cases is that, even where a seemingly innocuous comment is made, if this can be taken in context with previous comments or actions, this may be sufficient to establish a “course of conduct” under the Act. Even if there is a reasonable interval between the incidents, this may not be a bar on an employee bringing a claim.
Gemma Hay is a solicitor in the employment team at law firm Dundas & Wilson.