Vicarious Liability for Harassment

The Court of Appeal has handed down its judgment in the important case of Majrowski v Guy’s & St Thomas’s NHS Trust, which dealt with vicarious liability for breach of any statutory duty and, specifically, with regard to breaches of the Protection from Harassment Act 1997 (PFHA).

Mr Majrowski was employed by Guy’s and St Thomas’s NHS Trust as a clinical audit co-ordinator. He alleged that during his time working in that post he was bullied, harassed and intimidated by his manager. He claimed that she was excessively critical of his work and strict about his time keeping. She also refused to talk with him and treated him differently and unfavourably compared with other members of staff. Furthermore, he claimed that she was rude and abusive to him in front of other staff and imposed unrealistic performance targets on him, threatening him with disciplinary action if he did not meet them.

Mr Majrowski brought a claim for damages against the Trust on the basis that as the employer it was vicariously liable to him, under section 3 of the PFHA, for the actions of its employee. The Central London County Court struck out the claim on the basis that an employer cannot be held vicariously liable under the Act for harassment committed by an employee. The judge did, however, grant permission for the appeal because he considered that the case raised a point of law that needed to be authoritatively determined.

The Court of Appeal unanimously held that employers can be vicariously liable for breaches of statutory duty as well as breaches of common law obligations, subject to the wording of the Act in question. In addition, in a majority decision the Court judged that there was nothing in the PFHA that prevented an employer being held vicariously liable for harassment by one employee of another, in the course of his or her employment, provided a sufficiently clear link can be established between the work and the harassment.

Although the PFHA does not specifically define harassment, the Court of Appeal did point out that, under the Act, the fact that a person suffers distress is not enough to show that harassment was the cause of the distress. To constitute harassment, the conduct has to be calculated to cause distress and has to be oppressive and unreasonable. Also, the perpetrator must know, or ought to know, that the conduct amounts to harassment and it must be conduct which a reasonable person would judge to be harassment.

The Court directed that the case should proceed to trial to determine whether, on the facts, Mr Majrowski’s manager had indeed harassed him within the meaning of the PFHA.

Under the Act, it is not necessary for the victim of harassment to prove that they have suffered a physical or psychiatric injury. Unlike personal injury claims, the victim only has to demonstrate that he or she has suffered anxiety and distress. The use of such claims is therefore likely to increase and claims for damages on account of bullying and harassment, where there is no apparent element of sex or race discrimination, may now be brought against employers in the common law courts.

Employers are advised that having an anti-harassment policy in place is not enough. Positive action must be taken to eliminate employee behaviour of a kind that could cause distress and anxiety to others in the workplace.