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Majrowski v Guy's & St Thomas's NHS Trust, House of Lords, 12 July 2006

21 July 2006
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 matter came before the Court of Appeal which found in the Claimant’s favour. The Defendant appealed.

The decision

1. The essence of vicarious liability lay in policy. In brief the policy factors were as follows:-
That all forms of economic activity carried a risk of harm to others and that fairness required that those responsible for such activities should be liable to persons suffering loss from wrongs committed in the conduct of the enterprise. It was fair because it meant that injured people could look for recompense to a financially better placed source than individual employees and also that the financial loss arising from the wrongs could be spread more widely by liability insurance and higher prices. Moreover and importantly, imposing strict liability on employers encouraged them to maintain standards of good practice. It was for these reasons that employers were to be held liable for wrongs committed by their employees in the course of their employment.

2. It was difficult to see a coherent basis for confining the principle of vicarious liability to common law roles. The precondition for vicarious liability was that the wrong had to have been committed by an employee during the course of his employment. A wrong was committed during the course of employment only if the conduct was so closely connected with acts that the employee was authorised to do, such that, for the purposes of the liability of the employee to another, the wrongful conduct might fairly properly be regarded as done by the employee while acting in the course of his employment. If this pre-requisite was satisfied the policy reasons underlying the principle were as applicable to tortious wrongs as to breaches of statutory obligation.

3. A further issue arose with regard to vicarious liability, namely whether employers vicarious liability arose unless statutory provision expressly or impliedly excluded such liability or did it arise only if a statutory provision expressly or impliedly envisaged that such liability might arise.

4. A better view was the latter – unless that statute expressly or impliedly indicates otherwise, the principle of vicarious liability is applicable where an employee commits a breach of a statutory obligation which sounds in damages whilst acting in the course of his employment.

5. Turning to the Protection from Harassment Act 1997, neither the terms nor the practical effect of the legislation indicated that Parliament intended to exclude the ordinary principles of vicarious liability.

6. By section 3 Parliament created a new cause of action, a new civil wrong. Damages were one of the remedies for this wrong although they were not the primary remedy. Although there were special features to the new wrong such as, for example, the fact that anxiety was to be a head of damage and that the limitation period was six years, these features did not in themselves indicate an intention to exclude vicarious liability. The act of the employee still had to meet the “close connection” test and if they met this test there was no reason why these particular features should be thought to place this wrong in a special category in which an employer was exempt from vicarious liability.

7. It was true that the practical effect would be to increase the burden on an employer. But this was not enough to show that Parliament intended to exclude the ordinary common law principles of vicarious liability. If an employee, during the course of his employment, harassed a non-employee such as a customer, an employer would be liable if his employee assaulted a customer, there is no reason why this should not be the same in respect of harassment. In principle harassment arising from a dispute between two employees stood on the same footing. If acting in the course of his employment one employee assaulted another the employer would be liable. There was no reason why harassment should be treated differently.

8. It had been argued by the Trust that there was an overlap between the harassment provisions in the 1997 Act and the harassment provisions in the series of non-discrimination regulations and reduced to give effect to directives 2000/43/EC, 2000/78/EC and 2002/73/EC which were made pursuant to a new non-discrimination article, article 13, inserted into the treaty on European Union by the Amsterdam Treaty in 1997 and which came into force on the 1st May 1999. To take an example the Race Relations Act 1976 had had inserted into it new provisions regarding harassment. There was to those new provisions a statutory defence to the effect that in proceedings against an employer in respect of an act alleged to have been done by an employee the employer had a defence if he could prove that he took such steps as were reasonably practicable to prevent the employee to do that act or acts of that description. Under the 1997 Act if an employer was strictly liable for his employees acts of harassment, victims of racial harassment could bypass the defence intended to be available to employers under the Race Relations Act 1976 and equally the time strict time limits applicable to discrimination claims.

9. Although the effect was discordant and unsatisfactory it could not be said, given the legislative history, that the existence of the defence in the discrimination legislation and the absence of such a defence in the earlier 1997 Act assisted materially in the interpretation of the 1997 Act.

Appeal dismissed.

Comments

Many employers now faced with an exposure to a new species of employer liability claim where the head of damages now includes “anxiety” and where the limitation period is now six years may feel that Lord Bingham’s description of the overlap of the 1997 Act and the Race Relations Act 1996 as “discordant and unsatisfactory” is putting it very mildly – particularly in a context where there are uncertainties as to whether damages under the act will be covered by existing employer liability policies. After Hatton and Barber employers may have thought that some sort of brake had been put on claims for psychiatric injury within the workplace but after Majrowski, and before it Corr, nervous breakdowns may be frequently on the employers side of the fence!

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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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