A decision in a harassment case could worry insurers, says Paula Jefferson

Whether it's schoolchildren or sports players, soldiers or City bankers, bullying is in the news. It is also before the courts, as growing use is made of the Protection from Harassment Act [1997]. The latest developments came from a recent Court of Appeal decision.

The claimant brought a claim against his employer alleging that, while employed as a clinical co-ordinator he was bullied, intimidated and harassed by his departmental manager. His claim was limited to a breach of the Act.

At issue for the court was whether or not an employer can be held vicariously liable for a breach of the Act by an employee. The court at first instance decided it could not and struck out his claim. The claimant appealed.

By a two to one majority, the Court of Appeal refused to allow a blanket policy whereby employers could not be held vicariously liable for a breach of the Act by an employee. They felt that the courts should consider each case on its specific facts.

They considered that the need for a claimant to have to prove a course of conduct which amounted to harassment within the terms of the Act and to prove that the harassment was closely connected with the employment were sufficient safeguards for employers.

This decision is very important because potentially, unless overturned by an appeal to the House of Lords, it:

  • Extends the scope of an employer's duties
  • Bypasses the need for claimants to prove forseeability in respect of claims made under the Act
  • Extends the limitation period for a personal injury claim outside of the usual three year period (the limitation period under the Act is six years)
  • Broadens the type of claim for which damages will be payable (under the Act damages are payable for anxiety without any psychiatric injury).
  • This last point has particular implications for insurers as employers' liability policies normally do not cover anxiety or distress. This could lead to practical problems as to what damages are or are not covered by the policy.

    Unless appealed, this case will now be heard for a determination on the specific issues.

    It is unlikely to be the last case on this point and we must wait to see if the floodgates are open.

    ' Paula Jefferson is an associate in the injury risk group at Beachcroft Wansbroughs