NEWS - HARASSMENT - 19.10.2006

Who’s liable for harassment?

A new claim. In Majrowski v Guy’s & St Thomas’ NHS Trust 2005, Majrowski (M) had claimed damages for the bullying and harassment he suffered from his line manager. This had included criticism of his work and unrealistic work targets. However, instead of bringing a conventional claim, e.g. one based on discrimination, M had used the Protection from Harassment Act1997 (the Act).

Court of Appeal. M had argued that this Act could be used against employers who were vicariously liable (responsible) for employees who bullied colleagues. Despite the employer’s argument that the Act could only be used against individuals, the Court of Appeal (CA) held that there was nothing to preclude it being used against employers. The Trust appealed to the House of Lords (HL).

Findings. The HL rejected this appeal. In doing so, it set out several principles including the following; (1) unless a statute says otherwise, you can be held vicariously liable for an employee who breaches a statutory duty whilst acting in the course of their employment; (2) to qualify as harassment, a “course of conduct” only needs to involve two incidents, and; (3) ex-employees are covered.

Implications. As the HL has stamped its seal of approval on this case, it’s likely that many claims could be brought under the Act, particularly as it doesn’t define harassment. This means that a claimant won’t have to prove that they’ve suffered any physical or psychological injury. Plus, the Act doesn’t contain any defence that allows you to argue that you’ve taken all reasonable steps to prevent the harassment.

Tip. Don’t wait until you’ve been made aware of a problem. Talk to both parties to determine whether a more formal investigation is required. If it isn’t, meet with the complainant and explain why no further action is to be taken. Also, periodically bring any relevant policy to the attention of all staff.