Vicarious Liability and Harassment

I was speaking at a Personal Injury Conference in July 2005 and asked for a show of hands of those who were still taking on Stress Cases. I was met with a predictable groan from those who did and glassy eyed stare from the rest. It is fair to say that, apart from Union lawyers, most Personal Injury practitioners have been giving these cases a wide berth. And understandably so since the Hatton v Sutherland cases.

But the House of Lords decision in Majrowski v. Guy's and St. Thomas' NHS Trust is certainly cause for hope, if not yet celebration.

The factual scenario is not unfamiliar. The Claimant alleged that a manager had -
(a) Bullied and intimidated him,
(b) Been rude and abusive,
(c) Been extremely critical of time keeping and work,
(d) Set unrealistic targets with accompanying threats of disciplinary action,
(e) Refused to talk to him.

This might not have got very far as a claim for common law damages for stress at work. Had the trust acted in Breach of its duties as an employer? Had the Claimant suffered a recognizable illness that could give rise to a personal injury claim? Was such illness reasonably foreseeable?

Those advising Mr Majrowski seem to have answered no to those questions. No Personal Injury Claim was pursued. But they did commence proceedings under s.3 of the Protection from Harassment Act 1997. They claimed that the manager's conduct constituted harassment and that the Trust was vicariously liable.

This act received much publicity as the 'anti-stalking legislation.' But is not limited to that and certainly covers bullying at work. Section 1 states -
'(1) 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.
(2) For the purposes of this Section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of action amounted to harassment of the other..'

Section 3 provides a civil remedy for damages for anxiety caused by the harassment and any financial loss resulting from the harassment.

So the conduct was potentially a breach of the Act. But were the Trust vicariously liable for the personal misconduct of the manager? The Trust said no. Lord Nicholls summarises their objections a paragraph 23 -
(a) It was a public order provision and not designed to blameless employers,
(b) Damages would be recoverable for anxiety short of personal injury,
(c) Forseeability is not essential,
(d) Limitation is 6 years,
(e) The deterrent effect would be diminished if the litigation was drawn away from the perpetrator.

Their Lordships were not persuaded. Lord Nicholls found that unless the Statute specifically excluded vicarious liability then the employers were liable. The test was whether the wrongful act took place during the course of the employment. Lord Nicholls defined this as follows -
'A wrong is committed in the course of employment only if the conduct is so closely connected with the act the employee is authorised to do that, for the purpose of liability, the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment.' (Paragraph 10).

Lord Hope of Craighead also observed that the provisions relating to Limitation in Scotland made specific reference to the wrongdoer 'or the employer or principal of such a person.' (Paragraph 44).

So an employer can vicariously liable for breaches of S.1 of the Act.

This is potentially a major development for victims of bullying at work. Most of the obstacles in the way of a common law claim for stress will not apply. This was the very point of the Trust's objections. Damages can be awarded for anxiety alone. There is no need to establish forseeability. Limitation is 6 years - without discretion (!). The House of Lords acknowledged that this could lead to an increase in claims brought against employers. But as Baroness Hale points out at Paragraph 72 that is policy issue to be addressed by legislators. They chose not to exclude vicariously liability. Lord Nicholls also noted that concern but noted that Courts are well able to separate the wheat from the chaff. It might be added that good personal injury lawyers are similarly able. Good risk assessments already perform this task.

There are still a number of unresolved questions -

What constitutes harassment? This is only a decision on vicarious liability in principle. Another court on another day will have to decide the case on merit,

What constitutes a course of conduct? It certainly has to be more than an isolated incident.

What about quantum? Will damages for anxiety be modest? Possible so but the Act certainly provides for consequential losses.

It may be that the Courts will adopt a restrictive approach in practice. But there are signs of hope!