Two recent decisions have given guidance on the test to be satisfied if an employee is to succeed with claims against his or her employer for harassment under the Protection from Harassment Act 1997 ("PHA").
Conn v Sunderland City Council: During his employment with the Council, Mr Conn alleged psychiatric injury caused as a result of the harassment inflicted on him by his foreman and sought damages under the PHA. He successfully proved two instances of unacceptable conduct by the foreman, including a threat to smash a window when Mr Conn and his colleagues refused to inform him who had left work early and another occasion when the foreman had threatened to hit Mr Conn for 'giving him the silent treatment'. The Court of Appeal found, however, that neither amounted either to harassment or to the type of activity criminalised by the Act - in the first incident, the conduct had not been targeted at Mr Conn and his colleagues had not found it to be intimidating. The second, on its own, did not comprise a course of conduct, which, is required under the Act.
Hammond v International Network Services UK Ltd: Mr Hammond made a number of allegations against his employer, including that he was humiliated and insulted in front of fellow employees, refused training and had been told that a team event had been cancelled when, in fact, it had not. His claims for unfair dismissal and race discrimination failed in the tribunal and on appeal to the EAT. He also claimed in the civil courts for damages under the PHA. Rejecting his claim, the High Court held that the actions complained of did not amount to harassment under the PHA. In reaching its decision, the court observed that irritating, annoying and even upsetting conduct will not necessarily be a breach of the PHA. To be actionable under the PHA, the conduct will need to be criminal in nature and have an element of "real seriousness".
Impact on Employers
- Earlier successful claims under the PHA [reported in previous bulletins (see the cases of Majrowski and Green) raised concerns that claims under this Act might prove to be popular with employees at the expense of the employer as they were viewed as being less difficult to claim and prove than other claims capable of being raised on similar facts. These cases are therefore to be welcomed by employers as the courts have set out further tests that must be satisfied before the claim will succeed.