If an employee complained to their employer that they were being bullied, intimidated and harassed by their department manager, that employer might not expect to face a claim in the county court under legislation which was introduced in the 1990s to tackle stalkers. Yet this was the scenario faced recently by Guy’s & St Thomas’ NHS Trust.
The claim was brought by William Majrowski, a clinical audit manager at the trust. He said his manager was excessively critical of him, that she was very strict about his timekeeping and his work, isolated him by refusing to talk to him, and treated him differently and unfavourably compared to other staff. He said she was rude and abusive to him in front of other staff, and imposed unrealistic targets for his performance – threatening him with disciplinary action if he did not meet them.
Majrowski used section 3 of the Protection from Harassment Act 1997, saying that the manager’s conduct amounted to harassment in breach of the Act, and the trust, as her employer, was liable.
In the Central London Court, the judge struck the case out on the grounds that the Act was intended to protect people from harassment by individuals, not to create another level of employer’s liability, where employees are already adequately protected. However, the Court of Appeal disagreed in a majority decision. The appeal judges said that employers may be liable, under Section 3 of the Act, if their employees harassed third parties, including fellow employees, in the course of employment.
Under the Act, harassment may include “alarming the person or causing the person distress” on at least two occasions – conduct that can include speech. The Act provides a civil remedy for harassment, which goes further than common law in providing for damages for anxiety that falls short of injury to health. Also, the limitation period of three years which applies to personal injury actions does not apply. An employee has six years to bring such a claim.
An employee who believes that they have been bullied on more than one occasion by a manager can bring a straightforward harassment claim in the County Court. The advantage to the employee is that they have plenty of time to do this and need not pass the hurdles of a personal injury claim. Further, they do not need to have suffered a personal injury. The disadvantage, as with all County Court claims, is that a claimant would have a costs risk. Unlike employment tribunals, the principle is that the loser pays the winner’s costs. This may, in itself, be a deterrent for all but the most serious of claims.
Employers need to be aware that the behaviour of their managers could get them into hot water.
Paul Quain is on the management committee of the Employment Lawyers Association and is a managing associate at Linklaters
Steps to protect staff from harassment
- Make company policy clear about not tolerating any form of harassment
- Train managers regularly about how to spot harassment
- Encourage early reporting
- Open lines of communication. Make feedback easy
- Investigate complaints early and act to prevent matters escalating
- Set up proper support strategies to show the employer takes these issues seriously