Harassment

Over the six months from April to September 2006, four cases in which damages were claimed as a consequence of alleged bullying in the workplace proceeded to trial.

Much was written of the case of Majrowski v Guy’s & St Thomas’s NHS Trust (2006), where Majrowski proceeded with a claim under the Protection from Harassment Act and did not allege negligence.

The House of Lords, arguably with some reluctance, concluded that an employer could, in theory, be vicariously liable for a breach of the Act.

The case of Green v DB Group Services (UK) Ltd (2006) garnered wide publicity, both in the legal and insurance press, when the City secretary successfully recovered damages in excess of £800,000.

Two other cases: Clark v Chief Constable of Essex (2006) and Daniels v Commissioner of Police of the Metropolis (2006) were less widely reported.

Both alleged bullying by their respective police force employers. Clark succeeded while Daniels’ case failed.

Following the above glut of cases there have been no further significant court decisions in this area. Was the forecast of the opening of the floodgates for claims of this nature premature or could this be the calm before the storm?

In Majrowski, several concerns were raised by the defendant’s legal adviser, by Lord Justice Scott Baker in the Court of Appeal, and by the Law Lords. One of these was that, if an employer could be vicariously liable, the volume of claims arising from alleged bullying which was said to have caused psychiatric injury and/or anxiety would increase considerably.

In particular there would be many cases where damages were claimed for anxiety alone. Those claims would, by their nature, be expensive and difficult to investigate, particularly as claimants would take advantage of the six year limitation period for bringing such a claim.

Further it was considered that the costs of investigating would significantly outweigh the damages (if any) ultimately paid. In practice that rush of cases does not appear to have happened.

No definition

The lack of determined cases mean that there is still no clear guidance on some of the other issues and concerns raised in Majrowski. There remains no definition of what exactly harassment is.

Does harassment under the Act have to be of an order which would sustain criminal liability, as suggested by Lord Nicholls in the lead judgment in Majrowski?

The harassment and bullying complained of by Green did not appear to amount to a crime, although of course that was not tested.

In practice the courts seem likely to accept that activities which are on their own not criminal will still be enough for a civil claim to succeed.

Hence, in Majrowski, Green and Clark the accepted harassment resulted from the accumulation of repeated behaviour.

Each single incident on its own was not harassment and certainly not a crime. However, taken together, they did amount to harassment.

In Clark and Green, the allegations were that there had been harassment by more than one individual. The definition of harassment in the Act is that the behaviour amounting to harassment must have occurred on at least two occasions.

Again it remains unclear whether harassment by two people simultaneously but only once would be sufficient for a claim to succeed.

It remains unclear whether in claims brought for breach of the Act the anxiety or injury has to have been foreseeable.

Commentators have suggested that harassment, when it occurs, will always cause anxiety in some form. Therefore, if there has been harassment, it is automatically foreseeable that there will have been anxiety.

In contrast, however, harassment will not necessarily cause psychiatric injury and so it will not be foreseeable that psychiatric injury will result unless the claimant has put the defendant on notice. This argument is to date untested.

One area where a little more certainty has been achieved is that insurers have now had time to consider with their underwriters whether or not their employers’ and public liability policies will respond to a claim for anxiety alone.

Some have decided their policies do cover such a claim, others have concluded they do not. Clearly this issue needs to be determined as soon as a claim arises to avoid any later possible problems.

Jointly represented

Conflict remains another possible issue if the alleged bully is named as a defendant. In most cases the defence of the alleged bully and the employer will be the same and there is no conflict in their being jointly represented.

This does, however, need to be considered from the outset and if the insured is seeking to argue that the bullying occurred not in the course of its employee’s employment – particularly relevant where the claimant is not a current or former employee – then the alleged bully will need to be separately represented.

One final area of possible uncertainty is that of limitation. Under the Act there is a six-year time limit for bringing a claim. There is no discretion for that period to be extended or for date of knowledge arguments to be pursued.

However the cases proceeding to the House of Lords this November on the issue of limitation in claims arising from assault may impact on limitation in claims under the Act.

The passing of the seasons has not brought any clarity to the significant questions which surround claims brought under the Act. Thankfully there has not been a dramatic increase in claims of this nature, whether for anxiety or psychiatric injury.

But the lack of judicial interpretation makes it difficult to take a definitive view on claims when they arise.

If as is likely claims continue under the Act, then at some stage it will be helpful if further guidance is forthcoming as to what harassment is and whether or not foreseeability is relevant.

As Lord Hope of Craighead commented in Majrowski the issue of vicarious liability under the Act was “finely balanced and far from easy to decide”. That comment appears to apply to all of the issues thrown up by claims of this nature. IT

Paula Jefferson is a partner in the injury risk group at national commercial law firm Beachcroft