The Protection from Harassment Act 1997 has long been used in the criminal and civil courts to deal with the problem of stalking.
The recent House of Lords case of Majrowski v Guy’s and St. Thomas’ NHS Trust has extended the definition.
In this case, Mr. Majrowski, a homosexual, alleged his departmental manager harassed him at work. He was bullied, intimidated, and believed the treatment was fuelled by homophobia. The Trust investigated the complaint and found the harassment had occurred. Mr. Majorwski was later dismissed for unrelated reasons.
Nearly four years later, Mr. Majorwski issued proceedings in the County Court against his employer claiming damages under the Protection from Harassment Act 1997. He alleged that his employer was liable for the harassment caused by his supervisor. The House of Lords agreed and decided employers are now liable if one employee harasses another in the workplace.
This decision now leaves employers vulnerable to an additional area of litigation.
Any claim for damages, as in Mr. Majrowski’s case, may succeed on either the subjective or objective element of the Act. To succeed on the subjective element, it must be shown that a person pursued a course of conduct which:
amounted to harassment of another;
and
the person knew or ought to knew amounted to harassment.
The objective element of harassment occurs if a reasonable person, in possession of the same information, believed that the course of conduct amounted to harassment.
There must be two or more acts committed which amounted to harassment.
Will it open the flood gates?
For an employee, bringing a claim under the Act has several advantages. Employees can simply allege they have been harassed. They do not have to tie that harassment with some form of discrimination, such as race, sex, sexual orientation and religious belief, which would be required in the Employment Tribunal.
Proceedings in the County Court may be issued up to six years after the harassment has taken place. This is somewhat more generous than the three months allowed in the Employment Tribunal.
An employee would not have to show they suffered "reasonably foreseeable" physical or psychiatric injury, as they would in a stress at work claim. All that is required is they suffered anxiety or distress, which is a much lower threshold than physical or psychiatric injury.
For employers, these problems are compounded as the Act does not define "harassment". The only guidance given is that harassment includes elements of alarm and distress.
Should employees have a disagreement both inside and outside working hours, the decision in Majrowski may cause significant problems for employers. Employers will have to be even more vigilant that any disagreement does not continue in work time. They must ensure that any disagreement cannot be construed as harassment. Employers will also have to tread a fine line to ensure innocent "office banter" does not turn into harassment.
Even though there are potential advantages in bringing a claim under the Act, there are significant hurdles to overcome. Most importantly, the employee must prove the harassment occurred during the course of their employment. Harassment outside working hours will not be included, unless it is in some way work related, for example, office parties or other organised work activities.
In addition, unlike claims for discrimination in the Employment Tribunal, a one off act will not amount to harassment. There must be a course of conduct involving at least two occasions.
There is also the financial aspect to consider. Unless they have behaved unreasonably, employees liability in the Employment Tribunal is limited to their own legal fees. Disgruntled employees may be deterred from claiming harassment if faced with their employer’s legal costs if unsuccessful in the County Courts.
Overall, although this is new area of litigation which employers are vulnerable to, the risk of being sued can be reduced with positive action from the employer.
How can I protect my company?
Smaller organisations, which do not have established rules and procedure, are certainly vulnerable. In any event, there are some practical measures organisations of all sizes may take:
Acknowledge that harassment may be a problem and issue a clear statement that it will not be tolerated.
Provide examples of unacceptable behaviour and ensure that employees are aware that it will be treated as a disciplinary offence.
Ensure managers have adequate training.
Respond quickly to any allegations of harassment.
Provide a range of responses for any allegations. This may range from an informal approach and counselling, to formal disciplinary proceedings.
Above all, ensure that staff handbooks and documentation are up to date, and provide clear guidance to employees on how to respond and deal with allegations of harassment.