The Court of Appeal has held that a series of three letters sent by a firm of solicitors to a former employee constituted a course of conduct amounting to harassment under the Protection from Harassment Act 1997 (PHA). The case also clarifies that a claim under the PHA can be brought against a partnership (Iqbal v Dean Manson Solicitors).
Under the PHA, engaging in a course of conduct which amounts to harassment is an offence. Previously, the House of Lords has held (in the case of Majrowski v Guy's and St Thomas' NHS Trust) that courts should be well aware of the boundary between conduct which is unattractive, even unreasonable (which is not an offence under the PHA), and conduct which is oppressive and unacceptable (which is an offence), and that, in order to cross the line, the conduct "must be of an order that would sustain criminal liability". However, as can be seen, there is wide scope to catch many types of behaviour.
Mr Iqbal, a former employee of Dean Manson (a firm of solicitors) accepted instructions from Mr Butt to defend enforcement proceedings brought against him by Dean Manson. The proceedings related to a guarantee Mr Butt had given to underwrite the fees of clients of the firm for whom Mr Iqbal had acted while he was employed by Dean Manson.
The firm wrote two letters to Mr Iqbal, alleging that he lacked integrity and questioning his ability to give independent and impartial advice to Mr Butt in the circumstances. The second letter referred to his having been dismissed for gross subordination and reckless conduct, and alleged that his motivation for accepting Mr Butt's instructions was the pursuit of a vendetta against the firm. Mr Iqbal commenced court proceedings against Dean Manson under the PHA. Dean Manson then wrote again to Mr Iqbal, suggesting the he was misleading the Law Society and the public because his business partner was not permitted to live and work in the UK, and filed a defence to the PHA proceedings alleging, amongst other things that Mr Iqbal had left his employment under a cloud and that he had entered into a bigamous marriage.
The Court of Appeal held that a person is defined by the Interpretation Act to include "a body of persons corporate or incorporate" and therefore a claim under the PHA can be pursued against a partnership. In relation to the claim itself, each of the letters was capable of amounting to harassment under the PHA. This was because each was a deliberate attack on Mr Iqbal's personal integrity and designed to pressure him to cease acting for Mr Butt or to advise Mr Butt to agree to Dean Manson's demands. Although not required to do so, it went on to hold that, even if the first two letters had not amounted to harassment, a course of conduct could be established by taking the third letter together with the first two. Mr Iqbal could also rely on the firm's defence to the claim either as evidence of the course of conduct or as a further occasion making up a course of conduct under the PHA, even though it was not filed until after the claim was made.
The Court of Appeal recommended that the parties consider mediation to resolve this claim. As members of the same community in London, it considered that litigation did not seem an obvious means to settle their differences.
Impact on employers
- The case turns on its particular facts and the contents of the correspondence, and the Court of Appeal accepted that it "may seem to lie far from the kernel of the mischief which no doubt led to the Act's enactment, which was the stalking of women".
- However, this case is important for employers, who can be liable for harassment carried out by their employees. A claim of harassment under the PHA can lead to an award of damages for any resulting anxiety and financial loss, together with a possible jail sentence.
- A statement that, on the face of it, appears to be inoffensive may be deemed in retrospect to have formed part of a course of conduct amounting to harassment. Employers should ensure that policies and advice to staff about inappropriate conduct covers this potential pitfall.
- Employees should also be reminded in clear and well-publicised policies that email correspondence is just as likely to fall into this trap as a traditional letter, and that harassment will be dealt with under the organisation's disciplinary policy. Arguably, given that often less thought is put to sending an email, there is even greater danger in that form of communication.
- Care should be taken when sending any correspondence to former employees, especially where any allegations of misconduct or malpractice are concerned. Always ask if, in the circumstances, the recipient is likely to be alarmed or distressed by the content, or whether the communication amounts to an attack on the recipient's integrity.
- There is always a temptation in litigation to "get even" if the employment relationship has ended on a sour note. This case flags that even a letter sent after the commencement of proceedings could be taken as forming part of a course of conduct. As the Court of Appeal stated, "Whatever the hardships involved in litigation, it is not the occasion for irrelevant and abusive dirt to be thrown as part of a malicious campaign."