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Conn v The Council of the City of Sunderland, Court of Appeal, 7 November 2007

29 February 2008
The issues

Stress – harassment – Protection from Harassment Act 1997 – Majrowski v Guy’s & St Thomas’ NHS Trust.

The facts

The Claimant worked for the City Council as a paver. His foreman was Mr Dryden. Mr Dryden and the Claimant had known each other for many years. The Claimant alleged that on 5 occasions, between July 2000 and November 2000, Mr Dryden had abused, threatened and intimidated him in such a way as to amount to harassment under Section 1 of the 1997 Act. From the 17th November 2000 he was off work until his employment was terminated in June 2005.

The matter came before the Recorder in the Newcastle-Upon-Tyne County Court who found two of the five incidents proved. The Claimant’s case in negligence was rejected. However, the Recorder found that the two proved incidents amounted to harassment under the Act. The Recorder awarded the Claimant £2,000.00. The first “proved” incident concerned a loss of temper on the part of Mr Dryden, who became angry and threatened to punch out the windows of the cabin and have Mr Conn and two others up before Personnel. The second incident concerned Mr Dryden’s complaint that Mr Conn had been giving him “the silent treatment”. Mr Conn had told Mr Dryden that he was only prepared to talk about work matters, at which point Mr Dryden lost his temper and said he would give Mr Conn a good hiding and that he did not care if he lost his job over it. Mr Conn described Mr Dryden as shaking with rage and he said that he felt scared and threatened. The Recorder found as fact that Mr Dryden threatened Mr Conn with violence and “told him that the two of them were finished and that he, Mr Conn, was “a little shit” ”.

The Defendant Appealed.

The decision

In Majrowski v Guy’s & St Thomas’ NHS Trust Lord Nicholls had made the point that for conduct to constitute harassment, that conduct had to cross the boundary “from the regrettable to the unacceptable” and that it must be of an order which would sustain criminal liability under Section 2 of the Act.

What conduct might cross that border may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. The touchstone for recognising what was not harassment was whether the conduct was of such gravity as to justify the sanctions of the criminal law.

Although the matter was not free from doubt the Court was willing to accept, for the purposes of the Appeal, that in the second of the two proved incidents, the Recorder was correct. Mr Dryden’s conduct crossed the line to oppressive and unacceptable conduct, clearly causing the Claimant a great deal of distress. Insofar as the first incident was concerned however, it did not cross the boundary into conduct which could be said to be unlawful. The incident was no doubt an unpleasant one but no physical threat was made other than and solely to property. There was also force in the submission made by the Defendant by the Appellant that the remarks were addressed to three people on that occasion, not just to Mr Conn, who was not targeted. This was a sort of bad tempered conduct which, although unpleasant, came well below the line of that which justified a criminal sanction.

The Recorder was therefore wrong to find that there were two incidents sufficient to amount to a course of conduct and the Appeal would be allowed.

Comments

Not mine but that of Lord Justice Ward giving a short third Judgment:-

“I am tempted only to add: what on Earth is the world coming to if conduct of the kind that occurred in the third incident can be thought to be an act of harassment, potentially liable to giving rise to criminal proceedings punishable with imprisonment for a term not exceeding 6 months, and to a claim for damages and anxiety and financial loss?”

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