Until now, employees who are victims of workplace harassment have had difficulty finding a harassment-specific claim to bring against their employers. Instead, they have had to ‘shoehorn’ any such claim into more generic employment actions, such as a claim for constructive unfair dismissal or for stress amounting to personal injury. Specific harassment rights have recently been introduced under discrimination laws, but these obviously require a discriminatory context before they can be brought.
However, the Court of Appeal’s decision in Majrowski v Guy’s & St Thomas’s NHS Trust has opened up an entirely new, and potentially simpler, avenue for employees who wish to bring a bullying/harassment claim against their employer – under the Protection from Harassment Act 1997 (PHA).
Majrowski was a clinical audit co-ordinator employed by the trust. He alleged that while working for the trust he was bullied, intimidated and harassed by his manager. He brought a claim for the harassment perpetrated by his manager against the trust, under section 3 of the PHA.
The case was struck out at first instance, as disclosing no reasonable grounds for bringing the claim. Majrowski didn’t give up and appealed to the Court of Appeal which, fortunately for him, thought differently to the original judge.
The Court of Appeal confirmed that as a general principle, an employer may be vicariously liable for a breach of statutory duty imposed on its employee (depending on the type of the statutory duty in question). In other words, the court said that even though an employee may be the one who breaches statutory obligation – eg by harassing a colleague – the employer, though blameless, can still be found liable for such a breach, provided that the wording of the statute in question does not exclude vicarious liability.
The breach must also be committed by the employee in the course of employment. In Majrowski’s case, his manager was excessively critical of his standard of work and was rude and abusive to him in front of other staff; the alleged harassment arose in the course of fulfilling managerial duties.
The next issue was whether the PHA was a statute that excluded vicarious liability. The employer in this case (the trust) raised the strong argument that employees already benefit from a significant bundle of rights, and it could not have been parliament’s intention to add to these by means of the PHA, which had originally been conceived to protect individuals against stalkers.
However, a majority of the Court of Appeal decided the PHA was designed to protect individuals from harassment – regardless of where it took place. Even though this meant that employers’ liability was extended further, the court said that there were sufficient control mechanisms in the PHA’s construction to limit a flood of claims.
This represents a new and potentially simpler course of action for harassed employees wishing to bring a claim against their employer. Under section 3 of the PHA, an employee has to show that:
- there was a course of conduct, consisting of two or more instances
- the conduct amounted to harassment, ie it caused alarm or distress to the employee
- the perpetrator of the conduct must have known, or objectively ought to have known, that the conduct amounted to harassment
- the course of conduct was closely connected and not reasonably incidental to the perpetrator’s employment.
A claim under the PHA also has significant advantages for an employee:
- an employee need only prove that they are suffering from anxiety, rather than from a recognisable psychiatric illness – anxiety is a significantly lower medical condition to prove
- there is no requirement to prove that the anxiety suffered was a foreseeable consequence of the harassment, as is necessary under a stress claim (personal injury)
- the limitation period for bringing a claim is six years, rather than the three years applying to most stress claims.
The main disadvantage to bringing a claim under the PHA is that the correct forum is a county or high court, rather than the employment tribunal. The cost to the claimant of bringing the claim is therefore likely to be significantly higher.
Despite the court’s assertions to the contrary, many commentators suggest that Majrowski has significantly lowered the hurdle for bringing a successful harassment claim. Cautious employers should review their existing bullying/harassment policies and check that their employer’s liability insurance would cover any claims brought under the PHA.
However, it is worth noting that this decision may yet be appealed to the House of Lords, in which case this may not be the end of the story.
Louise Mason is a solicitor with the employment law group at Lovells