A new type of claim
As you’re aware, an employee can bring a harassment claim against you if they’ve been bullied or intimidated. However, a new Court of Appeal case has just increased their options. What’s the latest?
Criminal liability
As an employer you’re vicariously liable for the behaviour of your employees whilst acting in the course of their employment. This has steadily been extended to cover any behaviour which is sufficiently connected to an employee’s job. This means that you can be liable if an employee is harassed by other staff and you’re not dealing with the situation. However, following a Court of Appeal (CA) case, a disgruntled employee can now succeed in a new type of claim against you.
The bullying boss
The issues surrounding the type of claim to bring for harassment were considered in Majrowski v Guy’s and St Thomas’s NHS Trust, 2005 (see The next step). Since 1996, Majrowski (M) had been employed as a clinical audit co-ordinator for the Trust. He alleged that he had been subjected to bullying and harassment by his manager. In particular, he claimed that she was excessively critical of his work and his time-keeping, imposed unrealistic performance targets on him and was rude to him in front of other staff.
A statutory claim
Normally, alleged incidences of harassment would lead to an employee either claiming constructive dismissal for a breach of “trust and confidence” or a discrimination claim based on harassment, e.g. on grounds of race or sexual orientation. However, in this instance, M brought a county court claim under the Protection from Harassment Act 1997. S.1 states that a person mustn’t pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to such. The court rejected M’s claim on the basis that the Act only applies to individuals, meaning that the Trust couldn’t be held vicariously liable for its manager’s actions. M appealed to the Court of Appeal (CA).
Court of Appeal
The CA upheld M’s claim. It said that whilst the Act doesn’t expressly provide for vicarious liability, there’s nothing to say that it doesn’t. It also stated that the Act retains safeguards for the employer’s protection. These are as follows:
• this Act applies to a course of conduct, rather than a single act of harassment
• the test of whether harassment exists must be to an objective standard
• it must be reasonable in all the circumstances to make an employer vicariously liable for its employees’ acts.
Deal with any problems
This finding confirms that you’ll need to be well prepared to deal with any such allegations, as employees now have a new cause of action which savvy lawyers will be exploiting.
Tip. You must be seen to act once you’ve been made aware of a problem. Investigate by talking to those concerned. Deal firmly with those responsible and make them aware that any repeat will lead to disciplinary proceedings.
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