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Employment Law Majrowski and Employers liability for psychiatric illness

The Protection from Harassment Act 1997 makes harassment both a criminal and civil offence, it was intended to deal with the problem of stalking. Section 1 - Prohibition of Harassment A person must not pursue a course of conduct which:- i) Amounts to harassment of another; and ii) which he knows or ought to know amounts to harassment of another. 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 conduct amounted to harassment of the other. Majrowski v Guy's & St Thomas's NHS Trust [2006] UKHL 34 This case was a claim brought by an employee under the 1997 Act against his employer in respect of alleged harassment at work. The employee argued that his manager had breached a duty placed upon her by the Act and that the employer should be held vicariously liable for that breach. This was not a case which the employee could bring under any of the discrimination legislation.

The allegations were of general bullying intimidation and harassment. The Act clearly established a statutory tort and the Court of Appeal had to carefully consider whether an employer could be held vicariously liable for a statutory tort committed by one of its employees where the legislation in question does not specifically provide for such liability. On the basis that unless the statute in question directs otherwise or there is a good policy reason why the principle of vicarious liability should not apply, the Court of Appeal believed that there was no reason to reject the argument of the employee. The Court of Appeal was prepared to accept that although it was generally understood that the 1997 Act had been introduced to deal with the problem of stalking, it was nevertheless an Act which dealt with the prohibition of harassment in a range of different situations, not just stalking. The appellant NHS trust appealed against the decision ((2005) EWCA Civ 251, (2005) QB 848) that it was vicariously liable in damages to the respondent (M) under the Protection from Harassment Act 1997 s.

3 for harassment committed by one of its employees in breach of s.1 of the Act. M, who had been employed by the trust, had alleged that his manager had harassed, bullied and intimidated him while acting in the course of her employment. An investigation by the trust had resulted in a finding that harassment had occurred.

M had claimed against the trust for damages under s.3 of the Act based exclusively on the trust's vicarious liability for its employee's alleged breach of the statutory prohibition of harassment. The trust, relying on the phrase "damages may be awarded" in s.

3 of the Act, submitted that the award of damages under that section was discretionary, and therefore harassment could not be equated with a common law tort. The trust also submitted that the Act was not aimed at the workplace but was a legislative response to the public order problem of stalking. The House of Lords held that: (1) The principle of vicarious liability was not confined to common law torts, but was also applicable to equitable wrongs and breaches of statutory obligations. Unless statute expressly or impliedly indicated otherwise, vicarious liability was applicable where an employee committed a breach of a statutory obligation sounding in damages while acting in the course of his employment, Dubai Aluminium Co Ltd v Salaam (2002) UKHL 48 , (2003) 2 AC 366, Nicol v National Coal Board (1952) 102 LJ 357 and National Coal Board v England (1954) AC 403 applied, Harrison v National Coal Board (1951) AC 639 considered.

An employer could be vicariously liable if the employee's conduct was closely connected with the acts the employee was authorised to do and the conduct might fairly and properly be regarded as done by the employee in the course of her employment, Lister v Hesley Hall Ltd (2001) UKHL 22 , (2001) 2 WLR 1311 applied. (2) The effect of s.3(1) was to render a breach of s.1 a wrong giving rise to the ordinary remedies the law provided for civil wrongs. The enabling language "may be awarded" was apt simply to extend or clarify the heads of damage or loss for which damages were recoverable.

(3) Neither the terms nor the practical effect of the Act indicated that Parliament intended to exclude the ordinary principle of vicarious liability. By s.3 Parliament had created a new cause of action, a new civil wrong, and damages were one of the remedies for that wrong. Parliament had added harassment to the list of civil wrongs because it considered the existing law provided insufficient protection for victims of harassment. The prospect of abuse in cases of alleged workplace harassment was not a good reason for excluding vicarious liability.

(4) Section 10 of the Act inserted a new section, s.18B, into the Prescription and Limitation (Scotland) Act 1973, which assumed that in Scotland an employer might be vicariously liable in damages to the victim of a course of conduct amounting to harassment in breach of the relevant provision of the 1997 Act. Parliament could not have intended that the position should be different in England.

Problems The Act however presents an employee with hurdles to overcome if a claim is to be brought in this way. Firstly the 1997 Act prohibits only a "course of conduct" amounting to harassment, meaning that a single incident of harassment by an employee will not be sufficient to lead to liability. Secondly, in order to succeed, a claimant must establish that harassment within the meaning of the Act has taken place.

This means "alarming" the person or causing the person "distress" amongst other things. Thirdly, vicarious liability will only be established where there is a sufficiently close connection between the harasser's conduct and the nature of his or her duties, and where it is just and reasonable to hold the employer liable for the harasser's actions. This is obviously an area of law which is very much in its infancy. However there is possible cause for concern. An employee who brings a claim for damages in the Civil Court has two significant hurdles to clear.

The first is that any injury was "foreseeable" and the second is that if the claim is based upon a mental injury that that must be a "recognised psychiatric disorder" requiring significant medical evidence.

Ian Mann - Employment Barrister http://www.employment-barrister-uk.com http://www.13kbw.co.uk 13 King's Bench Walk Ian Mann was called to the Bar in 2000. He practices in employment disputes representing both employers and employees. His employment practice embraces the full spectrum of Employment Tribunal, High Court and appellate work and covers all areas of employment law, especially discrimination.

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