A recent Court of Appeal decision makes it harder for employees to use 'loophole legislation' to claim harassment in the workplace, writes Simon deMaid, employment lawyer at Howes Percival in Northampton.
The Protection from Harassment Act 1997 (PHA) was originally introduced to protect (and compensate) victims in stalking cases where existing legislation was inadequate. It therefore came as a shock when, in Majrowski v Guy's and St Thomas NHS Trust 2006, lawyers for Mr Majrowski successfully argued that the legislation could be interpreted to protect employees from harassment in the workplace.
This decision was viewed as bad news for employers as it opened the door to a new type of claim where employees could complain of harassment at work if they felt that their employer (or their colleagues) had behaved in a way that caused them 'alarm or distress' on more than one occasion. Alarmingly, PHA claims can be brought up to six years after the event; whereas discrimination claims must be presented within three months.
However, the good news for employers is that in December 2009 the Court of Appeal reduced the scope for successful PHA claims through its narrower interpretation of the definition of what constitutes 'harassment'.
In Veakins v Keir Islington 2009, the Court of Appeal confirmed that to prove harassment under the PHA, employees must demonstrate that the conduct complained of is 'oppressive and unacceptable' and of an order that would sustain criminal liability.
Miss Veakins worked as an electrician for Keir Islington and complained that she was harassed by her supervisor, who humiliated her and embarrassed her in front of colleagues. When a senior manager suggested to Miss Veakins that she write a letter to her supervisor setting out her concerns, the supervisor simply tore the letter up in front of Miss Veakins. Thereafter Miss Veakins' suffered with depression, which the Court found was caused by her supervisor's harassment. The Court upheld Miss Veakins claim and held that the reduction of a usually robust woman to a state of clinical depression demonstrated that the conduct crossed the line from 'unattractive and unreasonable' conduct to that which is 'oppressive and unacceptable'.
The Court suggested that cases such as Miss Veakins' would be relatively rare as the circumstances of her claim were "extraordinary".
It is hoped that following this decision it should become harder for employees to succeed in claims of harassment as future claims are only likely to succeed where there is a persistent or serious harassment. Nevertheless, this case should also serve as a useful reminder to employers of the importance of having and operating effective anti-harassment and bullying policies.