Protection from Harrassment Act
In Veakins v Kier Islington Ltd, the Court considered the proper test for determining what conduct could amount to harassment for the purpose of the 1997 Act and found a claim in damages.
Veakins v Kier Islington Ltd [2009] EWCA Civ 1288
Background
The Claimant alleged that she was harassed at work by her supervisor so as to cause a depressive illness, and that the Defendant vicariously liable for his acts. She brought a claim for damages under the Protection from Harassment Act 1997.
In her statement, the Claimant said that her supervisor Mrs Lavy clearly did not like her. They had an initial dispute over a wages problem, leading to a possibly embarrassing ‘telling-off’ in front of others. Mrs Lavy persistently picked on her, singling her out from her fellow employees for no reason at all. There were complaints that Mrs Lavy: required the Claimant to sign an In and Out register every day; changed the practice about the Claimant being picked up on the way to a particular job by colleagues;. once told her to "f**k off" (although the Claimant acknowledged that that word was not in itself unusual in the work environment); ripped up in front of her a letter of complaint the Claimant had written; asked other employees questions about the Claimant’s private life. The Claimant, who otherwise liked the job, said that Mrs Lavy made life hell for her though, by the end, she acknowledged that she did not like Mrs Lavy either and may have been a little confrontational herself.
The Claimant’s evidence was not challenged in cross examination and the Defendant called no evidence.
Protection from Harassment Act 1997
S.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.
S.1(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.
S.3(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
S.3(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
Trial Judge’s decision
The Judge relied comments of the Court of Appeal in
"…the conduct concerned must be of an order that would sustain criminal liability, and not merely civil liability on some other register."
He held that the conduct complained of did not constitute harassment within the meaning of s.1 because no sensible prosecuting authority would pursue the allegations criminally, and if a prosecution had been brought, it would be struck out as an abuse of process.
The Claimant appealed, arguing that the Judge had applied the wrong test.
Court of Appeal decision
The appeal was upheld and the case remitted for assessment of damages. Since Majrowski v Guy's and
The Judge had focused primarily on whether a prosecuting authority would have pursued a criminal case and, if there had been a prosecution, whether it would have any prospect of success. He had not evaluated the evidence against the primary requirement that conduct had to be "oppressive and unacceptable".
If the Judge had considered the evidence by reference to the test of "oppressive and unacceptable", he would have reached a different conclusion. The account of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust woman to a state of clinical depression is not simply an account of "unattractive" and "unreasonable" conduct or "the ordinary banter and badinage of life". It self-evidently crossed the line into conduct which is "oppressive and unreasonable". It may be that, if asked, a prosecutor would be reluctant to prosecute but that is not the consideration, which is whether the conduct is "of an order which would sustain criminal liability". The Court considered that, in the event of a prosecution, the proven conduct would be sufficient to establish criminal liability and criminal proceedings would not be stayed as an abuse of process.
Simon Cradick's comment:
The case confirms that, to establish liability under the Act, the conduct must be of an order that could sustain a criminal liability, though the test was not as high as the Judge imposed. In truth, it is difficult to envisage such behaviour resulting in a criminal prosecution, leave alone conviction, which is why the Judge dismissed the claim. However, the Court felt that it could and that will encourage claimants.
On the other hand, insurers (if not employers) will be encouraged by Kay LJ comments. He observed that, since Hatton v Sutherland [2002] it had become more difficult for an employee to succeed in a negligence action based on stress at work, which meant more employees seemed to be pursuing claims under the Act, though it was principally directed at "stalking" and similar cases. He did not think that stress at work would often give rise to liability for harassment. It is far more likely that, in the great majority of cases, the remedy for highhanded or discriminatory misconduct by or on behalf of an employer will be more fittingly in the Employment Tribunal.
In finding for the Claimant in Rayment v MoD (2010), Mrs Justice Davies adopted the "oppressive and unacceptable" test but, despite reviewing the authorities including Veakins, did not refer to the need for the court to keep in mind that conduct must be of an order which would sustain criminal liability. That alone might may the judgment susceptible to appeal.
Simon Cradick, Partner
T: 029 2038 5464
E: simon.cradick@morgan-cole.com
