Practice and Procedure

Legislation update

PUBLISHED September 20, 2006

THE Protection from Harassment Act was passed in 1997. From parliamentary debates it is clear that the Act was aimed mainly at disputes between individuals ? noisy neighbours, stalkers and their victims ? although this was not stated explicitly.  The Act outlaws a ?course of conduct? amounting to harassment, and provides civil remedies, such as compensation, as well as creating a criminal offence.

But does the Act apply in the workplace and is an employer liable for the harassment of one employee by another? That was the question put to the judges in the House of Lords in a case brought by a former clinical auditor against Guy?s and St Thomas? NHS Trust.

Mr Majrowski claimed to have been bullied by his line manager, who had intimidated him, set unrealistic performance targets and was excessively critical about his timekeeping. Mr Majrowski said that his line manager?s behaviour had been motivated by homophobia. Many years after he had left the job Mr Majrowski sought to bring a claim against the trust under the Protection from Harassment Act. The trust argued that there was plenty of employment law already under which he could have brought his claim and that it would be wrong to interpret the 1997 Act to include employment situations. The trust also noted that there was nothing in the Act to indicate that an employer should be vicariously liable if an employee harassed another employee at work. It would be unfair if the trust could be liable to pay compensation for injury caused many years after the relevant incident. The trust observed that, under the Act, Mr Majrowski had six years in which to bring his claim.

The House of Lords noted that the usual rule was that an employer should be responsible for his or her employees? actions while at work. Parliament had created a new cause of action under the 1997 Act, but had not specifically stated that an employer could not be liable. It may not have been intended to extend the Act that far, but that was the effect.

Lord Nicholls of Birkenhead posited the example of an employee harassing a customer and said that the employer should certainly be liable in those circumstances. Applying the same logic the Act must apply to harassment between employees also. The court was alive to the risk that its judgment opened up the possibility of disgruntled employees bringing vexatious cases years after the event, but Lord Nicholls said that to exclude all claims would be to ?throw the baby out with the bathwater? and that courts were ?able to separate the wheat from the chaff? early in any proceedings.

Mr Majrowski was allowed to continue with his claim. Employers and their insurers must wait and see if the feared rush of unmeritorious claims from former employees materialises.

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers E-mail: