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The Protection from Harassment Act 1997
[ch 2: pages 38-39]Another possible platform for a legal claim is the Protection from Harassment Act 1997 (PHA 97). However, again the practical and legal barriers to this kind of claim are very considerable.
Originally designed to target stalkers, the PHA 97 was first identified as a source of employment rights in 2007, when the House of Lords (now the Supreme Court) decided, in the case of Majrowski v Guy’s Hospital NHS Trust [2006] UKHL 34, that an employer can be liable under the PHA 97 for acts of bullying and harassment at the workplace carried out by an employee, as long as certain conditions are met. These are summarised on page 39.
A later decision involving serious bullying, Green v DB Group Services (UK) Limited [2006] EWCH 1898, sent shockwaves through the banking community when the judge ruled that a bank was liable under the PHA 97 for acts of bullying of a member of staff by co-workers: DB Group, a subsidiary of international bank Deutche Bank, was ordered to pay £800,000 in damages to Ms Green, an administrator who suffered a serious mental breakdown after the bank allowed serial workplace bullying by a group of female co-workers to continue unchecked.
The bullying took place over a four-year period, in which four female colleagues stonewalled Green, laughed in her face, removed her name from circulation lists, hid her post and removed papers from her desk. Former workers described Green’s workplace as the “department from hell”, in which they too had been targets of bullying, unchecked over a number of years.
A civil claim for compensation for harassment based on the PHA 1997 is difficult and costly to pursue. For this kind of claim, the harassment must:
• amount to a “course of conduct” (i.e. must involve more than just one incident);
• target the victim;
• be intended to cause the victim alarm or distress; and
• be very serious conduct, crossing the boundary between “unattractive and even unreasonable conduct” to become “oppressive” and “of an order that would sustain criminal liability”.
The requirement for conduct to be so serious as to be capable of leading to a criminal prosecution was set in the following case:
Mr Conn’s foreman lost his temper twice, acted aggressively and threatened violence. The first time, the foreman demanded to know who had left work early, and when Conn refused to tell him he shouted, and threatened to smash a window. The second time, he asked Conn why he was not talking to him, and then threatened to hit him.
The Court of Appeal concluded that there was no “course of conduct” and therefore no “harassment” under the PHA 97. Even though the first incident could be regarded as “criminal”, the second could not. Although it was “unpleasant”, there was no physical threat to Mr Conn. There was no liability under the PHA 97 in this case.
Sunderland City Council v Conn [2008] IRLR 324
It is quite probable that the Green case, which involved conduct that although extremely unpleasant was not criminal, would be decided differently today, following the Court of Appeal ruling in Conn, meaning that Green’s employer would not be found liable under the PHA 97.
In Veakins v Kier Islington Limited [2010] IRLR 132, the Court of Appeal confirmed that in the “great majority of cases”, the correct place to pursue a remedy for “high-handed or discriminatory conduct” is the employment tribunal, not the civil and criminal courts.