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Employers liable for harassment

LAW - A law designed to protect people from stalkers is being used to bring cases of harassment against employers, writes James Bell

A STIFF-upper-lip approach to the issue of stress used to prevail in the British workplace.

While it was accepted that employers had a duty to protect their employees from physical injury, intangible conditions such as depression and anxiety were outside the remit of personal injury law.

There was a brief rash of stress claims by public sector workers in the mid-1990s but they quickly died away as the judges clamped down.

Claimant lawyers then started looking for ways for aggrieved individuals to take action against employers for stress. And now, with the common law route closed off, antistalking laws are the new threat to UK employers.

We are seeing the Protection from Harassment Act 1997 - a piece of legislation brought in to protect people from stalkers - being used by employees to bring claims that previously would not have succeeded.

The use of the act has changed the legal landscape thanks to differences in its requirements from existing personal injury legislation.

Personal injury claims must generally be brought within three years of the offence, whereas claims under the act can be made six years later.

Also, claims brought under personal injury legislation must offer evidence of an injury - so stress claims must provide medical evidence stress.

But the Harassment Act refers to 'anxiety', emotional upset or injury to feelings, which have no strict medical analysis and are far more difficult to prove.

But perhaps the most problematic aspect of the act is the fact that employers can be held vicariously liable for claims. If one employee is harassing another, the employer can be responsible for this even if he was unaware of the offence.

Two cases in which claims have been made against employers on the grounds of vicarious liability are Banks v Ablex (2005) and a House of Lords case, Majrowski v Guy's and St Thomas' NHS Trust (2006).

In Banks v Ablex, the claimant argued that the aggressive and abusive behaviour of a co-worker, which included an assault, amounted to harassment under the act.

The Court of Appeal ultimately held that this conduct did not amount to harassment because there was no 'course of conduct' as defined in the act, which requires the harassment to occur on at least two occasions.

The question of vicarious liability was therefore not specifically addressed by the Court of Appeal.

In Majrowski v Guy's and St Thomas' NHS Trust, an employee claimed that he was bullied, intimidated and harassed by his department manager.

She was, he claimed, excessively critical, refused to talk to him, was rude and abusive and set unrealistic targets. He claimed that the conduct of his fellow employee amounted to harassment under the act.

The County Court judge originally struck out the claim on the basis that the employer could not be held to be vicariously liable. But the House of Lords has now said that the claim is valid.

Whether it is fair to impose vicarious liability depends on how close a connection there is between the acts complained of and the normal and expected duties of the employee.

Were the acts committed in the 'course of his employment'?

In previous cases the courts have declared that there must be a focus on the nature of the employment and the harassment must be linked to the employment.

Each case will have to be treated individually, but it is worth noting that there is more than one case in which nightclub bouncers have stabbed or shot punters and the nightclub owners were found liable.

Workplace bullying seems mild by comparison but it should not come as a surprise that vicarious liability has been extended in the harassment act cases.

For a claim under the act to succeed, the harassment must have occurred on at least two occasions, to the same victim, and must have been intentional.

The claim must also be brought against an employer and allege harassment by one of its employees. But the claim may be brought by anyone, whether they are an employee or not.

It is no defence for the employer to claim that he was unaware of the harassment and indeed the harassment need not be foreseeable for the employer to be held liable.

The precedents set by the Majrowski case are ominous for employers. They extend the liability of employers, allowing harassment claims that fall short of negligence by the employer or that do not have a strong medical basis.

Claimants will no longer have to prove foreseeability of harm, and any claims are in addition to those that can be brought in the Employment Tribunal under discrimination legislation. The criteria of causation, medical evidence and foreseeability have proved the downfall of many a personal injury workplace stress case.

Employers will no longer be able to rely on the defence that they should not be held liable for the actions of employees.

The extension of the claim period from three to six years could lead to the courts being flooded by dubious cases.

Precedents set by recent cases suggest that damages will generally not exceed £25,000 for simple injury to feelings but if the affected person is left unable to work, unlimited damages are possible. Worryingly for employers, their liability insurance may not cover claims for anxiety.

Claimant lawyers and bullied employees will be making hay for the time being, although if they are too successful the insurers and the CBI will kick up a fuss.

If this were the case, it is possible that the law could be changed. But do not hold your breath.

KEY POINTS

The Protect ion f rom Harassment Act 1997 is being used to bring claims against employers that previously would not have succeeded.

Claims under this law do not need to prove inju ry and can be heard up to six years after the alleged harassment.

Employers can be held vicariously liable under the Act.

It is no defence for an employer to claim ignorance of the harassment nor to claim that the harassment was not foreseeable.