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Majrowski v Guy's and St Thomas' NHS Trust, Court of Appeal, 16 March 2005

6 April 2005
The issues

Vicarious Liability – Protection From Harassment Act 1997 – Whether An Employer Can Be Civilly And Vicariously Liable For Harassment Committed By One Of Its Employees In The Course Of His Or Her Employment

The facts

Mr Majrowski was employed by the Trust as a Clinical Audit Co-ordinator from November 1996. He alleged that whilst he was working in that post he was bullied, intimidated and harassed by his Departmental Manager. He complained that she was excessively critical of his time keeping and his work and that she isolated him by refusing to talk to him. He said she treated him differently and unfavourably in comparison to other staff and that she was rude and abusive to him in front of staff. He also said she imposed unrealistic targets threatening him with disciplinary action if he did not achieve them. He alleged breach of statutory duty under against the hospital against Section 3 of the Protection from Harassment Act 1997.

There was no claim against the Trust in negligence or in contract. There was no separate claim against the Defendant Manager.

Section 1 of the 1997 Act prohibits a course of conduct which amounts to harassment of another and which a person committing the harassment knows or ought to know amounts to harassment. Section 2 of the Act makes a breach of Section 1 of the Act a Criminal offence. Section 3 provides a civil remedy for the same conduct and provides that damages could be awarded for, amongst other things, any anxiety caused by the harassment and any financial loss resulting from the harassment. The Judge at first instance struck out the claim on the basis that Section 3 did not create a statutory tort for which an employer could be vicariously liable. The Judge found that the claim only lay against an individual who was personally pursuing a cause of conduct amounting to harassment and also possibly against a corporation acting through someone as its “controlling mind”.

The Claimant appealed.

The decision

There were two issues – the broad issue and the narrow issue.

The broad issue was whether an employer could be civilly vicariously liable for a breach of statutory duty imposed on his employee. The narrow issue was whether the 1997 Act applied to claims against employers in respect of their employee’s harassment of third parties including fellow employees
Vicarious liability is a legal responsibility imposed on an employer for a tort committed by his employee in the course of his employment. It had traditionally taken two forms – liability for an authorised or negligently permitted unlawful act of an employee in the course of employment; and secondly liability for an employee’s unauthorised or negligently permitted unlawful mode of doing an unauthorised act in the course of employment.

Only the second is truly vicarious liability – the first is primary liability.

In respect of the second and true form of vicarious liability the act must be so closely connected with what the employee is authorised to do that it could be rightly regarded as a mode, even if an improper one, of doing it. The latter point had been considered by the House of Lords in Lister v Hesley Hall and Dubai Aluminium v Salaam. In Bernard v The Attorney General of Jamaica the Privy Counsel summed up the effect of Lister and Dubai Aluminium as posing the question “whether the [employee’s] torts were so closely connected with an employment that it would be fair and just to hold the employers vicariously liable”. Thus the new test had freed the Courts from the traditional test of “in the course of employment” and had substituted a test of fairness and justice turning in the circumstances of each case on the sufficiency of the connection between the breach of duty and the employment.

Vicarious liability was not confirmed to common law claims. An employer may be vicariously liable for a breach of statutory duty imposed on his employee though not on him if it met the new broader test. These were general guidelines. On the basis of any claim of vicarious liability in respect of breach of statutory duty by an employee the Claimant would have to show that the statute in question did not exclude such liability either expressly or on its proper construction. That led on to the narrow issue.

The Narrow Issue

Did the 1997 Act allow claims against employers in respect of their employee’s harassment of third parties including fellow employees. The 1997 Act neither expressly provided for nor expressly excluded vicarious liability, nor was an employer given a special defence as was provided in for example, the Race Relations Act 1976.

Whilst the prime mischief which the 1997 Act was aimed at was stalking it was not the only one. The conduct was described by reference to its consequence, not its nature. The workplace was very often the very place where harassment was likely to be encountered and from which its victim was powerless to escape. It was thus often likely to be a risk incidental to employment.

It had been argued that there was a risk of the flood gates being opened. There were however safeguards for employers in the Act – namely that more than a single Act was required and that it was necessary for Claimants to establish to an objective standard at least that the conduct complained of amounted to harassment and thirdly that it had to be just and reasonable in the circumstances of the case to compensate the Claimant by application of the “close connection and/or reasonably incidental risk” criteria. Employers were nowadays expected to be alert to all sorts of discrimination and exploitation by their employees which might include harassment. The employer will therefore be expected to establish good working practices and procedures to warn or guard against such abuse.

There was no reason why a corporate employer should not have the same vicarious responsibility as any other employer for his employee’s breaches.

Appeal allowed

Comments

Lord Justice Scott Baker dissented on the narrow issue, namely concluding that on a proper construction of the 1997 Act it did not extend in any circumstance to making an employer vicariously liable for the civil consequences of harassment committed by an employee in the course of his employment. In a strong dissenting judgment he commented that Parliament could not have intended to translate an essentially personal statutory liability into an added burden upon already burdened employers and expressed concerns that a statute intended to control or prevent stalking should by an unintended side wind enter the workplace. He noted that in his view there would be a serious floodgate problem without any adequate control mechanism which would be problematical particularly given the fact that employer’s liability policies would not normally cover harassment claims.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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