The Protection from Harassment Act 1997 has been generally viewed as public order legislation, designed to combat stalking. However, an employer can be held liable for harassment committed by one of its employees in the course of their employment, according to the House of Lords ruling in the case of Majrowski v St Guy’s and St Thomas’ NHS Trust.
The Act prohibits a course of conduct that a reasonable person would consider to be harassment, and allows the courts to issue restraining or non-harassment orders.
Although we might relish the thought of certain colleagues not being allowed to come within 100 yards of our desk, the view that this was a ‘stalking Act’ and not employment legislation has meant it has had little or no impact in the workplace.
That may change now the House of Lords has confirmed that an employer can be held ‘vicariously liable’ for harassment carried out by one employee towards another where the harassment occurs during the course of employment.
Would a reasonable person think the way in which Manager X barks orders at Employee Y is harassment? Manager X need only step over that line twice before there is a course of conduct that could amount to harassment, and the employer could be liable to pay damages to Employee Y.
Employer’s defence
Common to most discrimination legislation is an ’employer’s defence’. This means an employer will not be held liable for discriminatory conduct by an employee where it has taken all reasonable steps to prevent that conduct. This might be proved by reference to an equal opportunities policy or anti-harassment training.
However, bringing harassment claims under the Protection from Harassment Act rather than under discrimination legislation will deprive blameless employers of this defence, as vicarious liability can arise even where the employer could have done little more to prevent it.
Guys and St Thomas’ NHS Trust argued that a decision in Majrowski’s favour may open the floodgates to speculative claims, as the harm suffered needn’t be foreseeable or amount to a personal injury, and the conduct needn’t be discriminatory. However, staff will still face significant hurdles in bringing such claims.
The court must agree that the harassment was closely connected with the perpetrator’s employment. In addition, while some conduct may be unreasonable or upsetting, it might not qualify as unlawful harassment.
Even where the case is proven, the House of Lords has indicated that damages for anxiety under the Act will usually be modest, and the cost implications of bringing a claim in a civil court rather than an employment tribunal may dissuade many potential claimants.
Policy review
Although the employer’s defence is absent from the Act, implementing anti-harassment training and updating policies is likely to reduce the risk of claims.
Potential harassers might think again if their employer is vocal about the seriousness with which it treats harassment. Similarly, employers that ensure their internal procedures help staff who feel they have been harassed are more likely to nip issues in the bud.
However, employers will still need to rely on the courts adopting a sensible attitude as to what constitutes harassment. It is likely that most harassment claims will still form part of wider discrimination actions in employment tribunals, allowing employers to plead the defence that there was nothing more they could do.
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But where the training and policies have not prevented the conduct, it is the employer and not the harasser who could end up paying the price in the civil courts.
Key action points
- Review company policy on harassment, and widen its scope if necessary.
- Put in place adequate support mechanisms for employees who feel they have been harassed.
- Review disciplinary and grievance policies to ensure they can deal with harassment issues appropriately.
- Provide training for managers on how to identify harassment and handle complaints.
- Check that the organisation’s liability insurance covers claims of harassment.
