Employers warned to keen an eye out for bullying and harassment

Employers must be aware of what is happening in their workplaces, according to Giles Betts, head of Hewitsons’ Cambridge-based employment team.

Under the Protection from Harassment Act 1997 (PHA 1997) a person must not pursue a course of conduct which amounts to harassment of another which he knows or ought to know amounts to harassment of the other.

The case of Majrowski v Guy's and St Thomas' NHS Trust saw the House of Lords unanimously declare that an employer can be vicariously liable under the PHA 1997 for harassment committed by an employee in the course of employment.

A recent decision, Veakins v Kier Islington Ltd, saw the Court of Appeal review the authorities on the question of the threshold which behaviour must cross to amount to harassment. In this case the appellant claimed that she was harassed at work by her supervisor, Mrs Lavy. The appellant maintained that Kier Islington Ltd were vicariously liable for Mrs Lavy’s actions.

The court stated that since Majrowski, the primary focus of courts is to consider whether the conduct complained of is “oppressive and unacceptable” as opposed to merely unattractive, unreasonable or regrettable. While considering such, courts must keep in mind that the conduct must be of an order which “would sustain criminal liability”.

The need to consider the evidence against the test of “oppressive and unacceptable” conduct was emphasised by the court. In this case the court considered the appellant’s witness statement where the appellant took extended sick leave from which she never returned. The appellant suffered from depression for which she was prescribed medication and received counselling.

The medical evidence, which was undisputed, detailed that the appellant’s depression was caused by her dealings with Mrs Lavy, who. over a period of two months, was said to have embarrassed and humiliated her in the presence of others. Mrs Lavy also sought to obtain information from the appellant’s colleagues about her private life and was said to have been callous in her actions. The appellant sent Mrs Lavy a letter setting out her concerns at the time, which Mrs Lavy tore up and put in the bin.

The court held that the account of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust woman to a state of clinical depression was “oppressive and unacceptable” conduct. The court also held that such conduct would be sufficient to establish criminal liability.

Employers must note that the hurdles which an employee must cross to prove a case under the PHA 1997 are significantly lower than establishing a case in negligence as employees need only prove that they have experienced "anxiety" or "distress" as a result of the harassment rather than having to establish a recognisable psychiatric condition. Employees also have six years to bring a claim under the PHA 1997 as opposed to three years under negligence.

Employers should be aware that they can be held vicariously liable for harassment which occurs in their workplace which they do not know of. As a starting point care should be exercised over management practices that previously may have been left to the discretion of individual managers. Actions which could amount to a course of conduct causing harassment must be dealt with firmly and swiftly. Employers should consider the evidence of the effects of any misconduct carefully and conduct investigations in a sensitive, careful and meticulous manner.

If you would like any further advice about bullying and harassment in the workplace or any other employment issue, please contact Giles Betts on 01223 461155 or click here to email him.