Bullying and harassment in the workplace are detrimental not only to the individuals affected but also to the organisation, which can incur significant costs and suffer damage to its reputation.
An individual claiming to have suffered personal injury, whether physical or psychological, as a result of workplace harassment has a number of potential claims against their employer:
- A breach of contract claim. This could be a breach of the implied term relating to trust and confidence, or an express term of the employee’s contract.
- An injury claim in negligence or for breach of a health and safety statutory duty.
- A statutory vicarious liability claim under discrimination legislation;
- A strict vicarious liability claim under the Protection from Harassment Act 1997 (PHA).
Choice of the basis of the claim will have significant impact on what an individual needs to establish for showing breach of the duty, time limits for bringing the claim and potential defences open to the employer.
Vicarious liability is a common law principle of strict, no-fault liability. Under this principle, a blameless employer is held liable for a wrong committed by his employee acting in the course of his employment. This usually remains the position, even where the wrong-doing employee is acting in contravention of explicit instruction from the employer not to engage in such conduct. This is unless the conduct was so outside the scope of his employment that it is seen as a frolic of his own, which can be difficult to establish.
In Rose v Plenty a milk roundsman allowed a boy to help with deliveries contrary to express instructions from the employer. The employer was still held liable for injury suffered by the boy while on the round. In Mattis v Pollock, a nightclub owner employer was held vicariously liable for the actions of a bouncer who, after work, stabbed an individual with whom he had an earlier altercation when working.
This is significantly different to statutory vicarious liability under the various forms of discrimination legislation. For statutory vicarious liability only, an employer may have a defence where he is able to show he took such steps as were reasonably practicable to prevent the wrong being committed by his employee. In Caspersz v Ministry of Defence, the MOD was able to successfully defend a vicarious liability claim for sexual harassment under the Sex Discrimination Act 1975. This was due to the existence of a "dignity at work" policy which the MOD was able to demonstrate it followed.
The Protection from Harassment Act (PHA)
The PHA provides that "a person must not pursue a course of conduct (a) which amounts to harassment of another and (b) which he knows or ought to know amounts to harassment of another."
Although there is not a specific definition of harassment, the PHA does stipulate that references to harassing a person include alarming or causing the person distress; a course of conduct must involve at least two occasions; and that conduct includes speech.
The Court of Appeal in Conn v Sunderland City Council (a full transcript of which is still awaited) and the High Court in Hammond v International Network Services UK Limited stressed that a civil PHA claim can only arise as a remedy for conduct which would also amount to a criminal offence under the PHA.
Where the boundary between "unattractive and unreasonable conduct" and "oppressive and unacceptable conduct" lies will depend on the context in which the conduct occurred. However, the touchstone was whether the conduct was of such gravity as to justify the sanctions of the criminal law. As stated by the Judge in Hammond, "irritating, annoying and even upsetting conduct will not necessarily be a breach of the PHA".
"Unattractive and unreasonable" v "oppressive and unacceptable"
To establish a claim under the PHA, the individual will need to show that the conduct complained of:
- Occurred on at least two occasions;
- Was targeted at the victim;
- Was calculated to cause distress; and
- Is objectively judged to be oppressive and unreasonable.
The cases highlight that to establish a PHA claim, the conduct complained of must have an element of real seriousness and be of a nature that would also amount to a criminal offence under the PHA.
In the case of Conn v Sunderland City Council, two incidents were relied upon to establish the course of conduct. The first incident involved a foreman asking Mr Conn and two others to give him the name of those who had left the site early. When they had all refused, the foreman lost his temper and then threatened to smash a window of the portacabin with his fist and to report them all to the personnel department. Both of the other two men present at the time stated that they had not felt personally threatened by the foreman’s behaviour.
In the second incident relied upon the foreman again lost his temper and threatened to give Mr Conn a "good hiding". In the Court’s view, while the second incident may well have crossed the line into criminal misconduct and therefore amounted to harassment under the PHA, the first incident had not crossed the line. As Mr Conn was only able to establish conduct amounting to harassment in relation to one incident his claim failed (no course of conduct).
In the Hammond case, the individual had made a number of allegations of harassment and brought his claim under the PHA following a failed claim for unfair dismissal and race discrimination against the employer. The conduct complained of included alleged incidences such as being moved to work on another part of a project, not being invited to a team dinner and a change in accommodation while working on a project. His complaints also included being on a list of those asked to work over the Christmas period and alleged phone calls threatening his job security.
The Court had no hesitation in finding that the acts complained of did not amount to conduct which had been excessive and unacceptable amounting to harassment under the PHA. The only alleged conduct which came close to amounting to an act of harassment related to the alleged threatening phone calls which the Court found on the evidence never in fact occurred. As pointed out by the judge, the PHA is not intended to be used so that employers face allegations of harassment every time they make an operational decision with which an employee disagrees.
Menu of potential claims
While these decisions highlight the restrictions on the use of the PHA in relation to claims against employers, it does still remain a significant alternative course of action for employees experiencing harassment in the workplace caused by a colleague. Proceedings under the PHA will still have the following benefits for individuals in relation to other claims for psychiatric injury:
In contrast to a breach of contract claim:
- No need to prove that the anxiety or personal injury suffered was foreseeable which enables the individual to bypass the test set down in Sutherland v Hatton;
- Employers cannot rely on a "reasonable steps" type of defence which is possible in relation to breach of contract.
In contrast to a personal injury claim:
- Only need to prove that they have experienced "anxiety" as a result of the harassment. This is a significantly lower hurdle than establishing "a recognisable psychiatric condition" required for a successful non physical injury claim
- Six years to bring a claim, rather than three years.
In contrast to a claim under discrimination legislation:
- There is no need to show that the conduct was discriminatory;
- Employees cannot rely on the statutory reasonable steps defence available under discrimination legislation;
Claims under the PHA can only be brought in the civil courts rather than the Employment Tribunals:
- Unlike Employment Tribunals, costs are usually recoverable;
- Six years to bring a claim rather than three months (or six months where the statutory grievance procedure applies);
- Legal aid is available.
The restriction of the interpretation of the term "harassment" under the PHA, to conduct which would also amount to a criminal offence under the Act is welcome news for employers.
Judge Peter Coulson QC said "if employers were faced with allegations of harassment every time they made an operational decision, the commercial world would come to a halt." Nevertheless, employers do still face the possibility of facing claims of strict vicarious liability to which there will be no defence. That is if the individual can establish that they suffered injury as a result of a course of conduct where the treatment suffered amounts to criminal misconduct under the PHA.
Take note of any action points that will help you and your organisation:
o limit potential harassment claims employers should:
- Put in place comprehensive anti-discrimination and anti-harassment policies dealing with workplace bullying.
- Take steps to ensure that the anti-harassment policy is properly implemented, promoted and supported by the highest level within the organisation.
- Remember, being able to demonstrate that the employer took all reasonable steps to prevent the harassment occurring will help to defend a breach of duty of care claim or, claim for statutory vicarious liability under discrimination legislation. But it will not assist an employer faced with a strict liability claim for vicarious liability under the Protection from Harassment Act 1997.
- Ensure that incidents are dealt with as quickly as possible and the situation monitored to avoid the establishment of a course of conduct, which under the PHA could consist of as few as two incidents. To bring home to individuals the unacceptability of bullying, employers should remind staff that acts of bullying are gross misconduct for which dismissal may result. Furthermore, that the individual perpetrator may face a claim resulting in personal financial liability to the victim.