Editorial from IDS Brief 848, March 2008

Harassment: the latest Conn-troversy

The Protection from Harassment Act 1997 (PHA), which creates civil and criminal liability in respect of conduct that a reasonable person would consider to be ‘harassment’, adds a useful string to the bow of employees seeking a legal remedy for workplace bullying. Since the House of Lords’ decision in Majrowski v Guy’s and St Thomas’s NHS Trust (Brief 810), employees who have suffered injury (physical or mental) as a result of workplace bullying can bring a claim against their employer rather than against the perpetrator, on the basis that the employer is liable for acts of ‘harassment’ committed by employees in the course of their employment. Given that the PHA does not precisely define ‘harassment’, many thought that Majrowski had opened the floodgates and that all manner of unattractive conduct in the workplace would subsequently give rise to PHA claims. The Court of Appeal’s judgment in Conn v Council of the City of Sunderland, reported on page 8 of this Brief, indicates that this is not so.

What is harassment?

In Conn, the county court found that the claimant had suffered harassment on two occasions when his manager had become angry and threatened violence, and awarded damages under the PHA for psychiatric injury. On appeal, the Court of Appeal considered guidance given by the House in Majrowski on the level of unreasonable conduct that must be proved to amount to harassment under the PHA, endorsing Lord Justice Nicholls’ opinion that such conduct must be ‘oppressive and unreasonable’. The Court also approved Lord Nicholls’ comments in Majrowski that criminal liability under S.2 PHA should be the touchstone for civil liability under S.3. In other words, if conduct could not give rise to criminal proceedings under the PHA, nor should it give rise to civil proceedings.

While the Court of Appeal considered that the second incident in this case – when the manager had threatened violence – might conceivably amount to harassment under the PHA, it found that the first incident – when there was no specific threat – did not. As Ss.1 and 7 PHA require a ‘course of conduct’ – i.e. more than one incident – to be proved for unlawful harassment to be established, the one incident was not enough to support Mr Conn’s claim. With regard to the measure of ‘harassment’, some of the members of the Court expressed their views in rather strident terms. Lord Justice Ward wondered ‘what on earth is the world coming to if conduct of the kind that occurred in [the first of the two incidents found proved] can be thought to be an act of harassment, potentially liable to giving rise to criminal proceedings...?’ The county court’s award of damages under the PHA was overturned.

The Court of Appeal’s approach requires that both incidents individually amount to harassment for them to count towards the ‘course of conduct’. Interestingly, it did not seem to have been argued before the Court that the incidents should rather be considered cumulatively to see if they amount to harassment. Arguably, this interpretation sits comfortably with the wording of S.1 PHA, which creates liability in respect of ‘a course of conduct which amounts to harassment’. It might equally be argued that, as S.3 PHA also creates liability for an ‘apprehended’ breach of S.1, a single incident that reaches the required threshold might support a claim if the claimant fears a repetition. Indeed, Lord Nicholls suggested in Majrowski that such a claim should be possible.

No compensation for ‘irritations’

The Court of Appeal can be seen as taking a common sense approach to deciding whether civil liability should arise out of so-called bullying and harassment at work. Lord Nicholls in Majrowski stated that the PHA shouldn’t cover ‘irritations, annoyances, even a measure of upset’ in the workplace and, following Conn, it is safe to say that it will not. This approach will be welcomed by employers. Following Majrowski, many claimants seeking damages in negligence for their employer’s failure to protect them from bullying and harassment at work began to include a PHA claim in the alternative, giving them a second bite at the cherry should their negligence claim fail. Following Conn, the alternative claim will generally be less likely to succeed.

Other causes of action

Despite Conn’s limitation on the availability of a PHA claim, it is still an attractive option for the litigating employee. For one thing, whereas a common law negligence claim depends on the claimant proving that the injury suffered was reasonably foreseeable, no such requirement exists under the PHA – so long as breach of the statutory duty is proved, and damage results, compensation will follow. Furthermore, the category of damage in respect of which compensation can be awarded is wider under the PHA. Generally, to succeed in a common law claim in respect of psychiatric illness, the employee will have to show that he or she has suffered a recognised mental disorder. Under S.3(2) PHA, by contrast, damages may be awarded in respect of ‘anxiety’ caused to the victim.

In any event, employees who suffer offensive and unwanted conduct at work still have a wide range of weapons in their litigation arsenal, including claims for breach of contract, unfair constructive dismissal, or statutory harassment under the discrimination legislation, if the conduct is related to sex, race, age, etc. Thus, whatever restriction Conn places on the scope of the PHA will have little effect on the ever-rising tide of litigation in respect of bullying and harassment at work.