Raising the bar

Date: 11 April 2008
Authors: Tim Lawson-Cruttenden, Catherine Atkinson
Issue: Vol 158, Issue 7316
Categories: Features, Legal services, Constitutional law, Public

Has Conn made harassment a high-threshold offence? ask Tim Lawson-Cruttenden and Catherine Atkinson

Many believe that the use of harassment law has expanded far beyond the intentions of Parliament. So has the recent case of Conn v Sunderland City Council ([2007] EWCA Civ 1492), [2007] All ER (D) 99 (Nov) stemmed that unwarranted expansion, or has it narrowed the definition of harassment so severely that protection is afforded to no one? The decision in Conn may have successfully prevented claimants trying to use harassment law to pursue stress claims but is the decision limited to those cases or does it have ramifications for all harassment claims?

Parliament enacted the Protection from Harassment Act 1997 (PHA 1997) to prevent behaviour that could not be remedied by the existing criminal law. Section 1(1) states that a person must not “pursue a course of conduct: (a) which amounts to harassment of another; and (b) which he knows or ought to know amounts to harassment of the other”. Breach of s 1 is a criminal offence (s 2) and an actual or apprehended breach gives rise to a civil remedy (s 3). But what is harassment?

DEFINING HARASSMENT

Baroness Hale in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34, [2006] 4 All ER 395 stated that:

“[I]t is easy to see why the definition of harassment was left deliberately wide and open-ended…all sorts of conduct may amount to harassment. It includes alarming a person or causing her distress … but conduct might be harassment even if no alarm and distress is caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and generally offensive and unacceptable behaviour.” (para 66)

In Majrowski, Lord Nicolls set the stage for the decision in Conn. He acknowledged that “employers fear the prospect of a multiplicity of unfounded, speculative claims if they are vicariously liable for employees’ harassment. Disgruntled employees or exemployees, perhaps suffering from stress at work unrelated to harassment, perhaps bitter at being dismissed, will all too readily advance unmeritorious claims for compensation for harassment” (para 29). He went on to lay down a benchmark holding that “where…the quality of the conduct said to constitute harassment is being examined…Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. 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” (para 30). However, the criminal offence of harassment under s 2 remained a wide and undefined offence.

THE CRIMINAL THRESHOLD

The Court of Appeal, in Conn found that the conduct complained of came “well below the line of that which justifies a criminal sanction”. For many, that boundary was put surprisingly high. The first instance decision considered that the actions of the claimant’s foreman in losing his temper, acting in an aggressive manner and threatening to punch out windows constituted harassing behaviour. The Court of Appeal disagreed. It noted that “no physical threat was made; it was solely referred to property” and it was directed not at the claimant alone but at two other employees as well who did not feel intimidated. Lord Justice Ward commented:

“What on earth is the world coming to if conduct of the kind that occurred…can be thought to be an act of harassment…it falls so far below the threshold that we are in my judgment fully entitled to interfere with the judgment of the recorder even though he had the benefit of seeing the witnesses and judging the facts as they appeared before him.” (para 19)

As we have seen, the decisions in Majrowski and Conn stressed that the civil offence of harassment necessitates the same level of conduct as the criminal offence. It follows that the only difference between the civil and criminal offences under PHA 1997 is the burden of proof. The threshold that the decision of Conn sets appears to be high even for a criminal offence of harassment and is more akin to the offence of “putting people in fear of violence”, a separate and more serious offence under PHA 1997, s 4.

CONSEQUENCES

Has this decision made harassment a highthreshold offence and if so what are the consequences for other forms that harassment may take? Does it mean that low-threshold offences like passive stalking are no longer caught by PHA 1997? Is the very behaviour that government undertook to outlaw now lawful?

It could be that the decision in Conn will be narrowly construed in future cases. The Court of Appeal sought to shut down attempts to use PHA 1997 to advance stress claims which would otherwise fail because of the decision in Sutherland v Hatton [2002] EWCA Civ 76, [2002] All ER (D) 53 (Feb). Consequently it may be that decisions in Majrowski and Conn are limited to vicarious liability cases and stress claims. The Court of Appeal did acknowledge 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.” However, it is hard to see how these judgments would not be determinative of all harassment claims. It will be for future cases to determine whether or not PHA 1997 still has teeth.

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