Bullying and harassment claims in personal injury: where do we stand now?
16 May 2008
In the last few years, the laws surrounding personal injury
claims for bullying and harassment have changed considerably. The
case of Hatton v Sutherland [2002] ICI 613 made bringing a
claim for bullying and harassment under common law extremely
difficult. The court decided that in order to succeed, the Claimant
was required to prove that:
(a) there was a foreseeable risk of him suffering
psychiatric injury; and
(b) the employer failed in their duty to minimise the risk
of the Claimant suffering such an injury; and
(c) it was because of this failure that the Claimant
did in fact suffer a recognised psychiatric injury.
With such a high threshold, proving a stress claim
was an uphill struggle.
Protection from Harassment Act
1997
While the Protection from Harassment Act (PFHA)
was introduced to bring criminal sanctions against stalkers, its
arrival broadened the spectrum for bullying and harassment claims.
The PFHA requires a “course of conduct” of at least two
incidents. Additionally, claims for bullying and harassment
brought under the Act now enjoy an extended limitation period of 6
years.
Though harassment is not comprehensibly defined in
the Act, it must be calculated to have the effect of causing alarm
or distress, or be objectively oppressive and unreasonable and
within the course of employment. The test is whether a reasonable
person would regard the conduct as harassment.
The decision in the case of Majrowski v Guy’s
& St Thomas NHS Trust [2002] 1 AC 224 meant that the Act
made employers vicariously liable for their employees, so an
employer could be held negligent for failing to control an
employee’s behaviour. In that case, the Claimant alleged
bullying, intimidation, harassment and argued that his manager
treated him differently and unfavourably compared to other
staff. He also alleged that his manager was rude to him and
set him unrealistic targets.
The Claimant’s case under the PFHA succeeded and
accordingly it was no longer necessary to prove that a psychiatric
injury was foreseeable. This case made it much easier for
Claimants to bring a bullying and harassment claim as they could
bring a claim even if they had not gone through the usual
grievance/disciplinary procedures, giving them six years to do so,
often long after they had left the wrongdoer’s employ.
A new case
The recent case of Conn v Sunderland
City Council [2007] EWCA Civ 1492 drastically changed the
position.
William Conn had worked for many years for the
Sunderland County Council as a paver. He claimed that he had
been harassed and threatened by his foreman on several occasions
and as a result left his employment. He brought a claim in
negligence for a psychiatric injury (which did not succeed) and a
claim under the PFHA in relation to the foreman’s aggressive and
threatening manner.
Mr Conn alleged that there were two occasions when
the foreman had lost his temper and acted in an aggressive manner
threatening violence, which satisfied the Act’s requirement of a
course of conduct. The first incident involved the foreman
demanding information from Mr Conn (and two other employees who
were not troubled by the incident) and threatening to smash the
portakabin windows with his fist should they not answer him.
On the second occasion, the foreman threatened to give Mr Conn “a
good hiding”.
The case succeeded at first instance but the
Council appealed to the Court of Appeal. Here the Court stated that
the subjective intention of the wrongdoer was irrelevant. They
would only take into account whether or not the incidents amounted
to harassment and, if they did, the wrongdoer must have known or
ought to have known that it was harassment.
The Court went onto say that there was a
difference between unattractive or unreasonable behaviour and
oppressive and unacceptable behaviour. In order to establish
whether it had gone from the “regrettable” to the “unacceptable” is
to determine whether the gravity of the misconduct was such as
would sustain criminal sanctions. The Council won the appeal
on the basis that the first incident did not have the gravity of
the type of conduct criminalised by the PFHA. Because of this
there was no longer a “course of conduct” and the second incident
was not considered.
The future
Conn has dramatically reduced the scope
of the PFHA where personal injury claims for bullying and
harassment are concerned. The Court made it clear that the
touchstone for recognising what is harassment will be whether the
conduct is of such gravity as to justify sanctions of the criminal
law.
LJ Ward said “what on earth is the world coming to
if the conduct of the kind that occurred in the [first] incident
can be thought to be an act of harassment, potentially liable to
giving rise to criminal proceedings punishable with the
imprisonment for a term not exceeding six months, and to a claim
for damages for anxiety and financial loss? It falls so far short
of the threshold… the conduct here does not come close to
harassment…”
Conn may have the net result of bringing
bullying claims back to the Hatton position, but what is
and what is not harassment will become clearer as more decisions
become available.