Personal Injury Update

This topic is of increased interest to personal injury practitioners following the House of Lords’ ruling in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34, [2006] 4 All ER 395 that employers can be vicariously liable for breaches of the Protection from Harassment Act 1997 (PHA 1997) by their employees.

Conn v Sutherland County Council

Conn v Sutherland City Council, [2007] All ER (D) 99 (Nov) goes some way to militate against the unlooked for burden that PHA 1997 places on employers, by raising the bar for a finding of harassment.

It will be remembered that by virtue of ss 2 and 3 of PHA 1997, both civil and criminal liability arises from a breach of s 1, which provides:

“1. (1) 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.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows…

c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”

Section 7 of PHA 1997 defines “harassment” as including alarming a person or causing them distress; states that a “course of conduct” must involve conduct on at least two occasions; and defines “conduct” to include speech.

Background

Mr Conn had worked from many years as a paviour for the council. He alleged that he had been bullied by his manager on five separate occasions causing him psychiatric injury. By amendment he added a claim that his manager had also harassed him within the meaning of PHA 1997, for which the defendants were vicariously liable, applying Majrowski.

The trial judge, Recorder Guy Kearl, found that the claimant’s psychiatric injury had not been caused by the events at the claimant’s work. Conn’s claim in negligence therefore failed. However, the recorder went on to find that the claimant had proved that on two of the five occasions pleaded the manager had acted in an unacceptable fashion.

On the first of those occasions the manager had demanded from three of his subordinates (including Conn) information as to who had been leaving work early or, he said, he would punch out the window of a cabin and have them all up before the personnel department. On the second occasion the manager had been incensed at being given “the silent treatment” by Conn. He had sworn at Conn, threatening him with a hiding. Those two occasions amounted to a course of conduct prohibited by PHA 1997. Following the House of Lords’ decision in Majrowski, the recorder held that the council was vicariously liable for the harassment of Conn. He was awarded £2,000 damages and 75% of his costs.

The appeal

The council appealed, contending that the events complained of did not cross the boundary identified by Lord Nicholls in Majrowski between the regrettable and the unacceptable, the latter requiring that the gravity of the misconduct must  be of the order that would sustain criminal liability under PHA 1997, s 2.

The Court of Appeal (Lord Justices Ward, Buxton and Gage) had little hesitation in allowing the appeal. They underlined in forthright terms the requirement that the conduct in question has to be both oppressive and unacceptable. The window incident had not been targeted at MrConn but involved other workers, neither of whom had found such behaviour intimidating. There was no physical threat, merely a threat to property. It fell far short of the type of conduct criminalised by PHA 1997.

Since a course of conduct was required it was not necessary to determine whether or not the subsequent incident crossed the same boundary. Ward LJ expressed some dismay that we had got to a stage where such boorish and ill-tempered behaviour could be seriously regarded as criminal.