Following the House of Lords 2006 decision in Marjorowski v Guy’s & St Thomas’ NHS Trust, many claimants saw the Protection from Harassment Act 1997 as an easier way of making stress-related claims than under common law. In Marjorowski, the law lords ruled that employers could be held vicariously liable for acts of their employees that breached the 1997 Act. Since then, insurers have had to deal with an increased number of employers’ liability (EL) claims based on anxiety caused by harassment.

Until the introduction of the Act, employees suffering pressure at work had to establish injury or a recognised psychiatric illness that was a reasonably foreseeable consequence of their employment. This was difficult to establish and the appellate courts were careful not to open the floodgates to a rush of claims.

The 1997 Act

However, under section 3 of the Protection from Harassment Act 1997, damages can be awarded for anxiety or other conditions falling short of a recognised psychiatric disorder. Further, a claimant does not have to prove reasonable foreseeability, which (as mentioned earlier) was often the main hurdle for claimants in common law stress-related cases. The Act also allows a six-year limitation period, which makes it harder for defendants to obtain evidence to rebut the claimant’s case.

In order to succeed under the Act, a claimant has to prove a course of conduct by a person that amounts to harassment – in this context, a “course of conduct” must involve conduct on at least two occasions – and which the perpetrator knows (or ought to know) amounts to harassment. The question of whether the perpetrator ought to know that their conduct amounts to harassment will be judged according to whether a reasonable person in possession of the same information would think that it constituted harassment.

The term “conduct” includes speech; and “harassment” includes alarming a person or causing them distress. In order to establish vicarious liability, the conduct must arise during the course of employment.

So the scope of the Act is wide but, unlike its common law counterpart, a statutory claim for harassment does require conduct intended to cause alarm or distress. This concept does not fit easily within liability policies, and is closer to conduct normally associated with disciplinary or employment tribunals than with the civil courts.

Mr Marjorowski’s success

Mr Marjorowski successfully alleged harassment in the course of his employment. The facts of the case were typical of many stress-related claims. Mr Marjorowski’s departmental manager was extremely critical of his timekeeping and work, set him unrealistic targets and was abusive to him in front of other staff. Following Mr Marjorowski’s success, many claimants felt encouraged to follow suit and have tried to recover damages under the Act for anxiety inflicted by overzealous management.

The Conn case

Fortunately, the Court of Appeal in Conn v Sunderland City Council (7 November 2007) has now made it clear that the misconduct must be sufficiently serious to justify a criminal conviction under section 2 of the Act.

In Conn, the claimant alleged that his foreman had bullied him on five separate occasions. At first instance, the county court judge found for Mr Conn, who (the judge concluded) proved that, on two of those five occasions, the manager had indulged in an unacceptable course of conduct as covered by the 1997 Act.

On the first of these occasions, the foreman had demanded information from three of his subordinates (including Mr Conn) about who had been leaving work early. In the course of making this demand, the manager lost his temper, threatening to smash the window of a portakabin and report them all to the personnel department. On the second occasion, the foreman was incensed at being given the silent treatment by Mr Conn. He swore at Mr Conn, and threatened him with a hiding. Damages of £2,000 were awarded for such harassment.

The Court of Appeal overturned the trial judge’s decision, dismissing the conduct complained of as simply “boorish and ill tempered”. While the second incident could conceivably amount to qualifying conduct – being a direct threat of physical violence against the claimant – the initial incident fell far short of the type of behaviour criminalised by the 1997 Act. Such conduct had to be “oppressive and unacceptable”. Accordingly, Mr Conn had not established the course of conduct required by the Act.

Lord Justice Gage said: “The touchstone, as to whether the facts in a particular case crossed the boundary from the regrettable to the unacceptable, was to ask whether the gravity of the misconduct was of an order which would sustain criminal liability under section 2.”

Michael Porter QC, counsel for the successful appellant, later commented: “This case will be particularly useful to those who are called upon to defend actions brought under the Protection from Harassment Act. The requirement of criminality is re-emphasised in strident terms. This is not an easy cause of action to tag onto a stress at work case, to fall back on in the event that anxiety, but not recognised psychiatric injury, can be proved”.

The future

Looking ahead, it is to be hoped that, as a result of the Court of Appeal’s decision in Conn, the number of anxiety claims faced by insurers under the 1997 Act drops sharply.

However, it is still important for insurers to examine their insurance policies to see whether or not anxiety claims fall within the scope of the standard EL policy. Where the policy defines “injury” as meaning either bodily injury or mental injury, anxiety would not fall within this definition unless it had advanced to such a level as to be classified as a mental illness or psychiatric disorder.

However, if (despite Conn) anxiety claims do become commonplace, insurers may face pressure to extend the definition to cover conditions falling short of a recognised psychiatric disorder. Alternatively, the insured could be required to take out more specific cover against harassment by its officers.

For the time being at least, though, it would seem that Conn has shut the floodgates on a rush of anxiety/stress claims founded on the 1997 Act.