- March 30, 2012
- By Jenny Kennedy
- 0 comments
Compensation for harassment at work
Employees who have been harassed by a colleague or manager at work can bring a claim against their employer for compensation under the Protection from Harassment Act 1997.
The 2006 case of Majrowski v Guy’s and St Thomas’ NHS Trust confirmed that an employer can be vicariously liable for harassment carried out by its employee contrary to the Act, which was originally brought in to protect victims of stalking.
Section 1 of the Protection from Harassment Act provides that “a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of another”.
The type of behaviour which may amount to harassment has been subject to much judicial comment, but there remains a degree of uncertainty.
In Majrowski, harassment was defined as “conduct which is oppressive and unacceptable”. However, conduct “which is unattractive, even unreasonable” would not amount to harassment. Where the boundary lies will depend on the context in which the conduct occurred: “what might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward” (Conn v Sunderland City Council).
There must be a “course of conduct”; this is two or more incidents which are connected in type and context. The more incidents and the closer in time, the more likely the claim is to succeed.
In Green v DB Group Services (UK) Ltd, the claimant’s manager was domineering, disrespectful, dismissive, confrontatory and his behaviour was designed to undermine the claimant and belittle her in the view of others. This behaviour amounted to harassment under the Act: it occurred frequently, was targeted at the claimant and was calculated to cause distress.
The bar was raised at the end of 2007 as to the severity of incident which could amount to harassment. The Court of Appeal in Conn said 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”. This is because the Act provides criminal as well as civil sanctions.
The case of Conn was seen to narrow the types of behaviour which could amount to harassment under the Act, and thereby making it very difficult for claimants to succeed. Subsequent cases have however broadened the parameters.
In Veakins v Kier Islington Ltd, the Court of Appeal overturned a decision that the claimant’s supervisor’s conduct towards her did not amount to harassment. The trial judge had been pre-occupied with whether a prosecuting authority would have pursued a criminal case and whether a prosecution would have succeeded. This is not the test. The primary focus should be on whether the conduct complained of was oppressive and unacceptable, albeit keeping in mind whether the conduct was of an order that would sustain criminal liability.
In Veakins, the claimant’s claim was allowed on the basis of her unchallenged evidence of victimisation, demoralisation and the reduction of a reasonable and robust woman to a state of clinical depression.
In Rayment v Ministry of Defence, the court found that a meeting between the claimant and an officer who wrongly and deliberately used an innocent administrative error to try to get rid of her constituted harassment. A further incident involving the return of pornographic photographs which the claimant had removed from the restroom was also harassment for the purposes of the Act.
Three letters sent by a firm of solicitors to their former employee amounted – in the 2011 case of Iqbal v Dean Mason Solicitors – to a deliberate attack on his professional and personal integrity and constituted harassment under the Act.
Where an employee has been harassed at work, there may be certain advantages of bringing a claim under the Act rather than or in addition to a stress at work claim in negligence.
Establishing foreseeability of injury (i.e. that it was reasonably foreseeable to the employer that the employee was at risk of suffering psychiatric harm as a result of stress at work) has been a very difficult hurdle for claimants to overcome in stress at work claims since Hatton v Sutherland. A claim for harassment under the Act has an advantage in that foreseeability is not an essential ingredient.
Another advantage of a claim under the Act is that there is a 6 year limitation limit, as opposed to the usual 3 year time limit in a usual stress at work claim.
To succeed in a psychiatric injury claim in negligence there must be a diagnosis of a recognised psychiatric injury, such as depression. This is not a requirement under the Act; alarm and distress is all that is needed. This may be an advantage where the incident has an immediate but relatively short-lived impact on the employee.