Following on from the recent seminar given by Stephen Bryceland of our insurers’ representation team and David Hoey of our employment team, the following is an example of a recent case under The Protection of Harassment Act 1997 where Tony Jones, one of our Solicitor Advocates, successfully defended employers at a hearing lasting over 22 days.
The pursuer claimed damages at common law and also under the Protection from Harassment Act 1997.
During the course of the hearing, the House of Lords issued its decision in Majrowski v Guy’s and St. Thomas ’ NHS Trust [2006] UK HL34, as a result of which, such claims are likely to become more common.
Generally speaking, in order to succeed with a direct claim against employers for harassment carried out by an employee, one requires to show that the employers knew or ought to have known of the harassment and failed to do anything about it. One would also have to prove that the harassment resulted in a diagnosable psychiatric illness.
Alternatively, a pursuer can claim that an employer is vicariously liable for the harassment carried out by an employee if that harassment took place during the employee’s course of employment. However, the pursuer would still have to show that the harassment resulted in a diagnosable psychiatric illness.
In Majrowski the House of Lords decided that employers could be vicariously liable for harassment in terms of the 1997 Act. The 1997 Act creates a liability for any anxiety caused regardless of whether or not there is any diagnosable psychiatric condition.
One of the problems that the Majrowski case will create for employers is how to deal with complaints of harassment. If an employee claims he is being harassed by another employee, perhaps a Line Manager, and the employers investigate the allegations and find them to be well founded, then this appears to lend support to a civil claim for damages in terms of the 1997 Act.
It is conceivable that a pursuer might claim that such a finding by the employers was, in effect, an admission of liability. In turn, this might cause some insurers to argue that such an admission is a breach of policy conditions and refuse to indemnify in the event of a claim!
In Majrowski, Lord Nicholls of Birkenhead considered that the Act “will to some extent increase employers’ burdens” but that “awards of damages for anxiety under the 1997 Act would normally be modest”. While it might be the case that awards for anxiety not resulting in a diagnosable psychiatric condition might be modest, it is readily apparent that there are likely to be many more claims for harassment founding upon the 1997 Act.
The result is that most employers will need to look closely at any anti-harassment policy and what steps, if any, they need to take to minimise the risk of employees harassing one another.
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Stephen Bryceland
(Information posted in February 2007and may not have been updated at time of reading).