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Banks v Ablex Limited, Court of Appeal, 24 February 2005

4 March 2005
The issues

Stress At Work – Psychiatric Injury – Harassment And Bullying – Employer’s Responsibility For Conduct Of A Harassing Nature By A Co-Employee To The Claimant

The facts

The Claimant was employed by the Defendant as a Night Shift Supervisor at their factory at Telford.

She alleged that in the course of her employment she had suffered a depressive disorder of moderate severity rendering her unfit for work, caused by; the conduct towards her of a fellow employee, one Chris Briggs who was an engineer, the failure of the Defendant to prevent that conduct; and the failure of the Defendants to investigate two particular incidents on 13th and 14th October 1998 when Briggs had shouted and sworn at the Claimant.

The Claimant had prior to her civil action made a claim of sexual discrimination to an employment tribunal apparently based upon the same facts. That claim had been stayed pending the outcome of proceedings in the County Court. She had alleged that on 14th October she was assaulted by Briggs. There was an initial hearing in May 2002 in which the Judge made a finding that as a matter of fact the Claimant had not been assaulted. As a result of that finding prior to the second hearing in October 2003 the Claimant refined her claim to allege that Briggs had committed the tort of common law of intentional infliction of injury or in the alternative “the statutory tort of harassment” under the Protection From Harassment Act 1997; and that in either case the Defendant was vicariously liable; and further that the Defendants were in breach of their primary duty to the Claimant as their employee. At the second hearing the Judge declined to revisit the factual evidence. He found in respect of intentional infliction, that Briggs had not intended to harm the Claimant and that there being no assault all that was left was “a catalogue of rudeness and unfriendliness”. He found the allegation of harassment was not made out. Briggs had been ill tempered but there was no evidence that his outbursts were targeted at the Claimant as opposed to anyone else. The Judge found no evidence that Briggs knew or ought to have known that his outbursts might harass the Claimant.

The Judge further found that it would not be fair, just or reasonable to hold the Defendant’s liable for an act committed by an individual employer of which they had no knowledge or control either subjectively or objectively. The claim was dismissed. The Claimant appealed.

The decision

1. The evidence that the Judge assessed showed that prior to 14th October 1998 there was nothing that had occurred that could properly be described as harassment of the Claimant by Briggs and even if Briggs’ conduct on 14th October could be so described the statutory tort was not proved because the misconduct amounting to harassment did not occur on two occasions as was required by Section 7(3) of the Protection Against Harassment Act.

2. There was no evidence to suggest prior to 14th October 1998 that the Defendants knew or ought to have known that the Claimant was in any way vulnerable. She was regarded as a strong and forthright supervisor who gave as good as she got. There was little to suggest that the Defendants knew or ought to have known about Briggs’ behaviour. There was no evidence from which the Judge could safely have concluded prior to 14th October 1998 that the Defendants ought to have foreseen significant injury to the mental health of the Claimant as a possible consequence of misconduct in the form of aggressive behaviour by Briggs. He had been given a warning in March 1998 but there was no reason to believe that as far as people were concerned Briggs would not heed the warning given to him on that date so no reason for the Defendants to do more to protect other employees and even if a further eruption could have been foreseen there was no reason to believe it would endanger the mental health of the Claimant.

Appeal dismissed.

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