Spotlight on stress

Employees iStock 000005305116XSmall 146x219In the second of two articles on stress, Roy Woollard looks at harassment claims under the Protection from Harassment Act.

Bullying at work can potentially lead to three main categories of claim:

  • A common law stress claim for psychiatric injury.
  • A claim in the Employment Tribunal under discrimination legislation or for unfair dismissal.
  • A harassment claim under the Protection from Harassment Act 1997 (PHA97).

It is the third point that falls under the spotlight in this article, as it represents a new and worrying approach to behaviour in the workplace. It offers an ever-easier route to litigation for claimants.

The Protection from Harassment Act 1997

The Act was introduced to prevent people being ‘stalked’ by giving them recourse to both the criminal and civil courts for remedy. It was never envisaged as being anything to do with employment and the behaviour of employees in the workplace until the groundbreaking case of Majrowski went to the House of Lords in 2006.

In fact, Majrowski had been thrown out at first instance on the grounds that it did not apply to employment and the workplace. Sadly, the higher courts did not agree.

S1(i) Prohibits a person from pursuing:

  • A course of conduct
  • That amounts to harassment
  • Which he knows, or ought to know amounts to harassment.

Contravention gives rise to:

  • a criminal offence (s2) and
  • a civil remedy (s3).

William Majrowski v Guy’s and St Thomas’ NHS Trust, 2006, HL

The claimant (M) was employed by the Trust. He alleged his manager bullied and intimidated him and that this was fuelled by homophobia. A formal complaint was made in April 1998. The Trust investigated and found evidence of bullying. M was dismissed in June 1998 for unrelated issues. M did not have sufficient service to claim unfair dismissal and events occurred prior to regulations outlawing discrimination on grounds of sexual orientation. Therefore the PHA97 was his only course of action.

The House of Lords stated: “An employer could be vicariously liable in damages under the Protection from Harassment Act 1997 s3 for a course of conduct by one of its employees that amounted to harassment in breach of s1 of that Act.”

Unlike in respect of a workplace stress claim at common law, a claimant under PHA97 does not need to show recognised psychiatric harm (‘anxiety’ is sufficient); or to put his employer on notice that he is likely to suffer from harm. He has six years in which to bring his claim. To be successful under the Act he need only prove:

  • a course of conduct (two or more times) of
  • harassment (not defined).

Once he has proved these, there is no defence for the employer.

However, Nicholls LJ set the bar for the harassment to engage the Act at a very high level indeed. “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 s2.”

This was echoed in Conn v Sunderland City Council, 2007 CA.

In Conn, it was held on appeal that whilst the second incident threatening the claimant with physical violence was harassment, the first incident was not as the perpetrator had threatened to smash a window. To meet the criteria of harassment, the conduct had to be directed at the claimant. It was also not serious enough: “While the incident was unpleasant it fell below the line of conduct that justified a criminal sanction and could not amount to harassment.”

The standard has been slipping ever since. In Veakins v Kier Islington (2009) CA, a test of sorts was introduced: “The primary focus was on whether the conduct complained of was oppressive and unacceptable, albeit the court had to keep in mind that the conduct was of an order that would sustain criminal liability.”

In Rayment v MoD (2010), albeit a first instance decision, the judge applied the ‘oppressive and unacceptable’ test without mention of the requirement for the conduct to be of a criminal level.

These two cases cause some concern as they appear to represent a relaxation of one of the two hurdles which the claimant must overcome. The other hurdle seems to be under attack, too.

In Iqbal v Dean Manson Solicitors (2011), the harassment was in the form of three letters, only one of which could be classed as meeting the threshold for harassment: “The Act was concerned with courses of conduct that amounted to harassment, rather than with individual instances of harassment. The judge therefore erred in failing to ask himself whether the three letters as a whole could amount to a relevant course of conduct.”

This appears to run contrary to the decision in Conn and is a lowering of the bar with respect to this course of conduct.

Comment

There seems to be something of a relaxation of the requirements imposed by the court in Majrowski, a worrying downward trend that appears to offer an all-too-easy route into litigation for ‘workplace stress claims, in direct contrast to the high standards laid down in Hatton.

Roy Woollard is a Partner and former head teacher at Berrymans Lace Mawer. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..

To read the first article, Stress testing: Hatton and Sutherland ten years on, click here.