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Veakins v Kier Islington Ltd, Court of Appeal, 2 December 2009

18 December 2009
The issues

Harassment – Protection from Harassment Act 1997 – degree of requisite conduct.

The facts

The Claimant alleged that she had been harassed at work by her supervisor and that her employer was vicariously liable for those acts. The Claimant alleged that her supervisor picked on her and singled her out from her fellow employees for no reason at all. There were disputes about time keeping and about the supervisor requiring the Claimant, for a time, to sign IN and OUT register everyday. There was a complaint that on one occasion her supervisor told her to “fuck off”, although the Claimant acknowledged that that word was not itself unusual in this particular work environment. There was also a complaint about the supervisor ripping up, in front of the Claimant, a letter of complaint that she had written. The Claimant said that the supervisor made life hell for her. She also accepted that she may have been confrontational herself in particular about the question of wages. The Recorder dismissed the Claimant’s case. In his Judgment he referred to the decision of the House of Lords in Majrowski v Guy’s & St Thomas’ NHS Trust and the decision of the Court of Appeal in Conn v The Council of the city of Sunderland. Purporting to rely on these authorities, he took the view that the conduct complained of did not constitute harassment within the meaning of Section 1 of the Act because it could not be said that any sensible prosecuting Authority would pursue these allegations criminally or, if a prosecution were brought privately, that any such prosecution would suffer any fate other than to be brought to an early end as an abuse of process.

The Claimant Appealed.

The decision

The Recorder had focused primarily on his assessment of whether a prosecuting Authority would have pursued a criminal case and, if there had been such a prosecution, whether it would have had any prospect of success. He did not evaluate the evidence against the primary requirement that, in order to establish liability, the conduct had to be “oppressive and unacceptable”. Those words were conspicuously absent from his Judgment. That displayed an erroneous approach. The Defendant had argued before the Court of Appeal that even if the Recorder had been wrong, nonetheless, finding that any criminal prosecution based on the evidence would be stayed as an abuse of process, was fatal to the present Appeal. The evidence of the Claimant had been unchallenged and the Recorder had accepted it without qualification. It told a story of substantial reasonableness on her own part but the opposite on the part of the supervisor. It described the supervisor seeking to obtain information from colleagues about the Claimant’s private life “to make my life more difficult at work”. There were indications of callousness, “she was smiling all the time, obviously enjoying the situation”. All this took place in the context of several incidents that brought the Claimant and the supervisor into conflict – unpaid wages, issues about punctuality, travel arrangements, etc. He would not inevitably have come to the same conclusion, namely that the Claimant had failed to prove harassment on the balance of probabilities. The conduct complained of, and that had been unchallenged, crossed the line into conduct that was “oppressive and unreasonable”. It was conduct which in the event of a prosecution (whether or not a prosecutor would be reluctant or otherwise to prosecute) would be sufficient to establish criminal liability.

Comments

In his conclusion, Lord Justice Maurice Kaye noted that since Hatton v Sutherland it has become more difficult for an employee to succeed in a negligence action based on stress at work and that this might have caused more employees to seek redress by reference to harassment and the statutory tort, although he noted that it was doubtful whether the legislature had the workplace in mind when passing the Act. He emphasised that it should not be thought from this unusually one sided case that stress at work would often give rise to liability for harassment. The circumstances in this case were extraordinary and he did not expect many workplace cases would give rise to this liability. He noted that in the great majority of cases the remedy for high handed or discriminatory misconduct on the part of or on the behalf of an employer would be more fittingly handled in the Employment Tribunal.

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