A recent Court of Appeal judgment will be of concern to employers and insurers faced with harassment claims who thought that the genie that constituted Harassment Act claims had been firmly put back into the bottle following the common sense judgment in Conn v Sutherland City Council.
The Court of Appeal’s decision in Iqbal v Dean Manson Solicitors [15.02.11] suggests that, in considering what constitutes a course of conduct for the purposes of the Protection from Harassment Act 1997, the courts need to look at conduct as a whole rather than the individual acts themselves.
In harassment claims there is a low or non existent threshold in relation to foreseeability, which means that a claimant will succeed if he can show a course of conduct that is both unreasonable and oppressive. The 1997 Act states there must be at least two occasions of conduct to amount to a course of conduct. Certainly this was the approach of the Court of Appeal in Conn v Sutherland City Council  where the Court of Appeal, in dismissing the Claimant’s claim, felt that several of the acts complained of simply did not amount to harassing acts.
Iqbal v Dean Manson Solicitors
In Iqbal the Claimant had worked for the Defendant as an assistant but left on bad terms. The Defendant sent the Claimant three letters making various allegations against him. The third letter made allegations of illegality against the Claimant. The Claimant brought a claim under the 1997 Act.
Following an application by the Defendant, the claim was struck out at an early stage as not presenting an arguable case of harassment under the Act. On appeal, Mr Justice Teare found that the third letter was arguably capable of being described as harassing, but that it was only one instance and so did not form a course of conduct, therefore the claim remained struck out. The Claimant appealed.
Court of Appeal
The Court of Appeal took a very different view. Lord Justice Rix felt that letters could be capable of causing alarm or distress. In his view, a professional man’s vocational integrity was the life blood of his vocation. In attacking this it opened the door to a harassment claim.
Rix LJ stated that each of the three letters could be construed as harassing. The Court needed to ask whether the first two letters read together with the third could amount to “a course of conduct”. In his view, there was no reason why the three letters when read together could not amount to a course of conduct even though individually, they may not do so. On this basis the Claimant could proceed with his claim.
The Court of Appeal was not asked to determine whether the letters did in fact constitute harassment within the meaning of the Act, only whether they were capable of doing so. However, this decision does represent a substantially lower threshold for claimants to surmount when pursuing a harassment claim and waters down the tougher tests proposed by the Court of Appeal in Conn v Sutherland County Council.
For employers and insurers, it is important that employee handbooks and dignity at work policies make it clear that employees have an obligation to report bullying and harassing behaviour to management, in order that this can be firmly dealt with by employers, through the disciplinary process if necessary.
In the event of being faced with such a claim, it is critical to be able to produce witness evidence to rebut the allegations. Failure to do so will make defending such a claim very difficult indeed.