A false alarm?

One of the arguments called upon by the insurance industry when claimant personal injury lawyers try to expand the boundaries of tort law is the “floodgates” argument: surely, it is argued, an expansion of liability in such-and-such case will lead to the courts being clogged with unmeritorious claims.

The “floodgates” argument was deployed in 2006 when the House of Lords heard the case of Majrowski v Guys and St Thomas’s NHS Trust, [2006] UKHL 34, [2006] 4 All ER 395. Majrowski was the case in which the House of Lords held that an employer could be vicariously liable (in civil law) for breaches of the Protection from Harassment Act 1997 (PHA 1997) committed by an employee in the course of his employment. Four years on, have the floodgates opened?

Majrowski, who was employed by the trust, alleged homophobic bullying and intimidation by his departmental manager. He claimed damages against the trust pursuant to s 3 of the Act, for distress and anxiety and consequential losses allegedly caused by the harassment. He made no claim against the departmental manager herself, and his claim was based exclusively on the trust’s vicarious liability for his manager’s alleged breach of the statutory prohibition of harassment.

The trust argued that imposing vicarious liability “would increase very considerably the volume of claims based on stress, anxiety or other emotional problems at work. The courts (will) be unable to strike out unmeritorious claims. The burden on employers, insurers and the administration of justice would be wholly unjustified”.

In his judgment Lord Nicholls stated in terms that he was not persuaded by these concerns: “To exclude liability on these grounds would be, to use the hackneyed phrase, to throw the baby out with the bath water. It would mean that where serious harassment by an employee in the course of his employment has occurred, the victim…would not have the right normally provided by the law to persons who suffer a wrong in that circumstance, namely, the right to have recourse to the wrongdoer’s employer.

The possibility of abuse is not a good reason for denying that right. Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so...courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable”.
Lord Nicholls went on to emphasise that: “To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under s 2.”

Industrial language: Conn

How has case law evolved in the four years since this decision? In Conn v Council of the City of Sunderland [2008] IRLR 324 the Court of Appeal elaborated on what might “cross the boundary”, observing that: “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 Court of Appeal was unimpressed by Mr Conn’s claim, which essentially involved nothing worse than what might in common parlance, be termed industrial language.

Taking a stand: Ferguson

The Court of Appeal found more compelling a claim by a Mrs Ferguson against British Gas in 2009. Ferguson argued that she was persistently harassed by unjustified bills and threats of legal proceedings after she decided to change to a different gas supplier. Jacob LJ was sympathetic to the claimant: “It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry. Such a person is Lisa Ferguson….”

British Gas argued that Ferguson’s complaints failed to satisfy the “gravity test”. The Court of Appeal reiterated that to constitute harassment, the conduct complained of must be not only repetitive but “oppressive and unacceptable”. The Court of Appeal found it “strongly arguable” that British Gas’s conduct satisfied this test (Ferguson v British Gas Trading Ltd [2009] 3 All ER 304).

Extraordinary: Veakins

Then, in Veakins v Kier Islington Ltd [2010] IRLR 132, [2009] All ER (D) 34 (Dec) Waller LJ considered the interaction of this cause of action with claims for personal injury caused by stress at work, observing that: “Since Hatton v Sutherland, it has become more difficult for an employee to succeed in the negligence action based on stress at work. It seems that this may be causing more employees to seek redress by reference to harassment and the statutory tort, although it is doubtful whether the legislature had the work place in mind when passing an Act that was principally directed at ‘stalking’ in similar cases. Nevertheless there was nothing in the language of the Act which excludes work place harassment. It should not be thought from this unusually one sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be ‘oppressive and unacceptable’ but I have done so in circumstances where I have also described it as ‘extraordinary’. I do not expect that many work place cases will give rise to this liability. It is far more likely that, in the great majority of cases, the remedy for high handed or discriminatory misconduct by or on behalf of an employer will be more fittingly in the employment tribunal.”

No flood warning necessary

Four years on from Majrowski, Waller LJ’s comments give a fair indication of how the courts view claims based on vicarious liability for breach of PHA 1997. Such claims will be unusual, perhaps even extraordinary. The courts have proved well capable of drawing the boundary. Despite fears, the floodgates have not opened.

Richard Scorer is head of personal injury at Pannone LLP.
E-mail: Richard.Scorer@pannone.co.uk

• Add new comment
• Printer-friendly version