When drafting this legislation it had not been the apparent intention of the government to introduce further regulations for businesses. Yet in 2006 the House of Lords held in the case of Majrowski v Guy's and St. Thomas' NHS Trust that the legislation could be used by employees who had been subject to harassment in the workplace and that employers could be held vicariously liable for such conduct.
The only requirement for the legislation to apply was that the conduct in question had to be oppressive and unacceptable as opposed to merely unattractive, unreasonable or regrettable. This opened the doors for employees and more importantly ex-employees to bring claims against the employer in respect of bullying by their colleagues.
Many employers were understandably concerned that all sorts of claims could now start coming out of the woodwork. Not only did this in effect extend their potential liability to non-discriminatory conduct but allegations could also relate to incidents that had happened years before due to the six year limitation period in the civil courts. A considerable period of time when compared with the normal three month time limit that applies to most claims in the Employment Tribunal.
The difficult question in many cases was what conduct should be regarded as oppressive and unacceptable and so actionable and what conduct was not. A year after Majrowski and the Court of Appeal gave important guidance on this issue in the case of Conn v Sunderland City Council 2007. This important case highlighted that claims could only succeed in proceedings under the Act if it could be shown that the harassment constituted conduct that was sufficient to establish criminal liability.
This requirement did provide a potential escape route for employers. Many managers could be tough, possibly unreasonable in the way they dealt with employees but whether those actions could result in a criminal prosecution was far more difficult for a claimant to show.
Veakins and criminal liability
The Court of Appeal decision in Veakins v Keir Islington Ltd 2009 is the latest instalment in this line of cases. The background to the case was that Judy Veakins was employed as a trainee electrician. In July 2005 Jackie Lavy became her supervisor. Veakins considered that Lavy clearly did not like her. She alleged that Lavy persistently picked on her and singled her out from her fellow employees for no reason at all. Her evidence was that she was told off in front of others and was required for a time to sign an In and Out register every day. Eventually she formally put her complaints in writing but Lavy responded by ripping up the letter in front of her without even opening it. This was the last straw for Veakins who went on sick leave for depression and subsequently resigned. However her claim under the Protection from Harassment Act 1997 was dismissed in the County Court on the grounds that the conduct of which she complained did not amount to criminal conduct and was therefore outside the protection afforded by the Act.
The Court of Appeal allowed the appeal. The conduct of Lavy was oppressive and unacceptable and in the opinion of the court would be sufficient to establish criminal liability. It was considered that the County Court judge had placed too much weight on the issue of whether the prosecution service would have actually agreed to bring proceedings rather than the real issue of whether the conduct could attract criminal liability.
At first glance the victory for the claimant would appear to be a step back from the restrictive interpretation that was applied by the Court of Appeal in Conn. However in giving the lead judgement in the case Lord Justice Maurice Kay placed special emphasis on the fact that most claims regarding workplace disputes would be more appropriately brought in the Employment Tribunal and that he did not expect that many workplace cases will give rise to this (Protection from Harassment Act 1997) liability. In fact he referred to the facts of this case as being extraordinary and that it should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment.
Bullying and harassment claims
Veakins sets out the general rule that most workplace stress and harassment cases will not give grounds for claims under the Act. However how easily exceptions to the rule will be found is a very real concern given the limited details of the alleged conduct Veakins faced.
Anti-harassment and bullying policies continue to be very important in the workplace. Action needs to be taken to prevent harassment not just to avoid legal proceedings but to also retain employees and get the most out of human resources.
It should be taken into account that where an employee is harassed and suffers stress as a consequence there are a number of other legal avenues open apart from that offered by the Protection from Harassment Act. It has been recently reported that Carmarthenshire NHS Trust has paid hospital employee Nanette Bowen ??150,000 compensation after she brought a personal injury claim because of bullying in work.
There is also the potential for claims for harassment under the ever widening discrimination heads of law and there is the ever present risk that the employee may resign and bring a claim for unfair constructive dismissal.
The potential consequences of bullying and harassment only emphasise the need to take effective action to stop the problem arising in the first place.