In Veakins v Kier Islington Ltd the Court of Appeal considered what an employee must prove in order to succeed with a workplace harassment claim brought not under the anti-discrimination legislation but under the 1997 Act.
At the original County Court hearing, the judge had suggested that, in order to succeed, the act of harassment had to be serious enough to be capable of being successfully prosecuted in a criminal court.
The Court of Appeal disagrees. Applying the test set out by the House of Lords in the case of Majrowski v Guy's and St Thomas' NHS Trust , it says that the primary focus is whether the conduct is 'oppressive and unacceptable', although the Court must also keep in mind that it must be of an order that would sustain criminal liability.
Although malice is not an ingredient of harassment, the fact that the perpetrator was motivated by malice 'makes satisfaction of the "oppressive and unacceptable" test easier to achieve'.
In this case, the claimant had been made ill by her female supervisor who clearly did not like her and 'made life hell for her'. The Court of Appeal considered that her claim should succeed but it should be noted that the employer, who was held liable for the actions of the harassing supervisor, had elected not to contest the claim so the only evidence before the court was that of the claimant.
Points to note –
- The advantage for a claimant of bringing a claim under the 1997 Act is that it can be made in circumstances where the anti-discrimination laws cannot apply – as here, where the bully and her victim were both of the same sex and race – and the claimant has six years in which to claim, rather than the three-month limitation period applicable to discrimination claims.
- The disadvantages for a claimant are that the claim must be brought in the County Court, where a claim typically cannot be withdrawn without cost implications, and not the Employment Tribunal.
- Although this claim succeeded, the Court of Appeal states that stress at work will not often give rise to a claim for harassment under the 1997 Act and that it is far more likely that cases of high-handed or discriminatory misconduct by, or on behalf of, an employer, will continue to be dealt with in the Employment Tribunal.