Don't be caught in the Act

Civil claims for damages arising under the Protection from Harassment Act (1997) are a new and evolving area of the law. When the bill was presented to Parliament on the 17 December 1996, Michael Howard, home secretary at the time, suggested that the Act was intended to deal with stalkers.

However, the Act does not specifically refer to this. It appears that parliament's intention was to deal with stalking only if it were aggravated by harassment.

Under the Act a person must not pursue a course of conduct which amounts to harassment of another. There is no specific definition of harassment, but section 7 indicates this includes causing anxiety or distress. In the work context, for vicarious liability to arise, a claimant would also need to establish that the harassment had occurred (during a course of conduct) during the course of employment.

The particular difficulty for employers is that there is no requirement for a claimant to establish foreseeability under the Act. An employer can be liable if the employee, in the course of his employment, undertakes a course of conduct, which has been conducted in secret, which nevertheless amounts to harassment.

While there are criminal sanctions available under the Act and also injunctive relief, the civil remedy allows a claimant to recover damages for the anxiety or distress caused by the harassment itself.

This was established by the lead case of Majrowski v Guy's and St Thomas's NHS Trust (2006). Majrowski made a formal complaint of harassment to the trust because his line manager, Sandra Freeman, bullied and intimated him because he was gay. The complaint was upheld.

Majrowski did not make a claim against the trust for personal injury, breach of contract or unfair dismissal, but sued under the Harassment Act for damages. His claim was originally struck out by the county court in February 2004 on the basis that the Act was not designed to extend liability to his employer, the trust.

The Court of Appeal overturned the decision and found that his employer could be vicariously liable for breaches of statutory duty committed by their employees, in the course of their employment, which included the duties imposed by the harassment Act. This was upheld by the House of Lords.

All is, however, not doom and gloom, as there are potential lines of defence available. First, a claimant would need to establish a course of conduct, that is, that the conduct complained of must have occurred on at least two occasions. The course of conduct must also be connected in type and context. If there were more than one employee actively involved in the harassment then each must be acting in the furtherance of some joint design.

Second, is the conduct oppressive and unacceptable? As Baroness Hale said in her judgment in Majrowski: ''All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress - second 7 (2). But conduct might be harassment even if no alarm or distress were in fact caused.

"A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour."

In Majrowski, harassment was given its proper and commonsense meaning.

Last, a claimant must also establish that the harassment occurred during the course of employment. This is often referred to as the 'close connection test' that is, the duties that the individual employee was engaged in were so closely connected to their employment that vicarious liability must follow.

Limitation defences
It is also important to bear in mind that limitation defences may be far and few between - section 6 of the Act allows a claim to be made within six years as opposed to the three years for a normal personal injury action.

Policy issues also need to be carefully considered by potential defendants. As there is no requirement under the Protection from Harassment Act to establish an injury, as damages may be awarded for anxiety and distress, the policy wording will need to be carefully checked to see whether or not a claim under the Act is covered.

Employers can take preventative measures to attempt to minimise such claims, although it is important to emphasise that they may not prevent the success or otherwise of a claim, particularly given that foreseeability is not a hurdle for a claimant.

Such steps might include seeking HR support when dealing with difficult members of staff/personality clashes, developing policies to ensure that harassment/bullying is eradicated and communicating to the workforce. Enforcing such policies, training employees and what amounts to bullying and harassment and what is not acceptable in the workplace.

It is too early to say what impact the Act will have, although the forseeability issues suggest there may be difficulties ahead particularly for employers. IT

' Helen Brown is a partner in the insurance law department at Langleys