Source: People Management magazine
Date: 10 August 2006

Employers’ liability for harassment in the workplace has just been increased, thanks to an anti-stalking law 

Stephen Ravenscroft and Alana Lowe-Petraske 

The recent House of Lords decision in Majrowski v Guy’s and St Thomas’ NHS Trust (2006 UKHL 34) has caused a stir among employers, because it has confirmed an employer will be liable for employees’ acts of harassment if they take place in the course of their employment. 

Majrowski was employed by the trust as a clinical auditor. He complained of being harassed by his manager, saying she had used abusive behaviour, fuelled by homophobia. The trust investigated his complaint and found harassment had occurred. Majrowski was later dismissed for an unrelated reason. 

Four years later he began county court proceedings under section 3 of the Protection from Harassment Act 1997, legislation intended to deal with stalkers. He claimed damages for distress, anxiety and consequential losses caused by the harassment. The claim was made against the trust rather than his manager on the grounds that it was vicariously liable as her employer. 

The claim was struck out on the grounds the act could not create another level of liability in employment law. Majrowski appealed successfully to the Court of Appeal and the trust appealed to the House of Lords. 

The House of Lords decided against the employer. The court accepted that the common law principle of vicarious liability should apply to harassment under the act, partly because the section applicable in Scotland appeared to provide for it. But the Lords confirmed employers’ liability would only arise where harassment occurred during employment and the employee’s actions were closely connected to the employment itself. So, employers can be held liable for their employees’ acts of harassment committed in the course of their employment, whether the victim is a co-worker or a third party. 

“Harassment” has no statutory definition under the act, but would appear to cover any unwanted behaviour that is oppressive and unacceptable. It must be a “course of conduct”, happening on at least two occasions. Victims can claim any time within six years of the conduct happening. 

Unlike harassment under anti-discrimination legislation, there is no defence available under the act for employers who have taken all reasonably practicable steps to prevent the harassment from occurring, and no requirement for the employee to raise a grievance in the first instance. 

There may be legal arguments that an employer can use once a claim is brought under the act. If the employee has already claimed for harassment under the discrimination legislation, or for personal injury resulting from harassment under the law of negligence, normally the law will prevent them from taking a “second bite at the cherry”. Employers may also be able to argue the alleged perpetrator has not engaged in a “course of conduct” or that it was not “in the course of employment”. 

Employers may be faced with a multiplicity of unfounded, speculative claims from employees as a result of this decision. 

Blame and claim 

Under the Protection from Harassment Act 1997, victims have the right to claim damages from the employer for the anxiety caused by the harassment, among other things, even though this outcome may not have been foreseeable and the employer has taken all reasonably practicable steps to prevent the harassment from occurring. Unlike a personal injury claim, there is no need for victims to produce medical evidence. 

How to avoid a tribunal 

The steps employers can take to avoid claims are broadly the same as those it should be taking to prevent harassment at work as part of an anti-discrimination strategy. These include:

• giving managers anti-harassment training to help them spot workplace bullying and, perhaps, modify the behaviour of potential bullies;
• providing clear guidance to employees about what behaviour is unacceptable;
• monitoring rates of employee turnover that might indicate bullying is taking place;
• taking any bullying complaints seriously and dealing with them without delay;
• ensuring the waiver of claims by employees as part of a compromise agreement is carefully worded to include possible claims under the act.