Workplace bully or commonplace criminal?
30 April 2008
Feeling ‘harassed’ or bullied at work does not automatically give rise to a harassment claim under the Protection from Harassment Act 1997 (the “Act”). Although the case of Majrowski v Guy’s and St Thomas’ NHS Trust [2006] appeared to widen the scope for such claims, it has been reiterated by the Court of Appeal in Conn v Sunderland City Council [2007] that conduct must be “oppressive and unacceptable”, as opposed to “unattractive” or “unreasonable” to satisfy the test for harassment under the Act.
Harassment is a criminal offence. The Act was originally intended to protect individuals against stalking but in Majrowski the House of Lords held that, under the Act, an employer could be held vicariously liable for harassment. Under the Act references to harassment include alarming a person and causing a person distress.
Without resigning and bringing a constructive dismissal claim, the primary route for an employee to claim harassment is via discrimination laws. However, these only offer protection to specific categories of employee. The concern over the decision in Majrowski was that another route was opened up to employees and claims for merely ‘unreasonable’ or ‘unwanted’ conduct in the workplace would be brought under the Act and criminal sanctions imposed on employers.
The county court in Conn used the decision in Majrowski to establish the employer’s liability for harassment under the Act. However, the Court of Appeal has overruled this.
The first incident complained of was that the site foreman became angry, threatening to punch out the windows of the cabin and report Mr Conn to personnel. This behaviour was directed towards two other employees, neither of whom was troubled by it. Although this conduct was unpleasant, it came well below the line of that which justified a criminal sanction.
The second incident crossed the line from unreasonable to unacceptable (being abusive and threatening violence against Mr Conn) but the Act requires a “course of conduct” (i.e. on at least two occasions) to establish liability. Given that this was the only incident serious enough to be harassment, liability could not be established.
The decision has been a helpful reminder of the nature of conduct which can amount to harassment under the Act. To justify a criminal sanction, the behaviour must be serious enough to be regarded as criminal. What the decision does not resolve is what options employees who feel harassed, and yet do not fall into the discrimination law categories, have beyond resigning and claiming constructive dismissal.
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