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Protection from Harassment Act 1997
A claim may also be possible under the Protection from Harassment Act 1997 (PHA 97), although, again, the practical barriers are very considerable. Although designed to provide protection against stalkers, the PHA 97 was first used in an employment setting in 2007, when the House of Lords (now the Supreme Court) in the case of Majrowski v Guy’s Hospital NHS Trust decided that an employer can be vicariously liable for acts of bullying and harassment at the workplace, as long as the victim can establish a “course of conduct”, directed at him or her and intended to cause alarm or distress.
The Majrowski case was followed by a later decision, Green v DB Group Services (UK) Limited [2006] EWCH 1898. In this case, the employer, a subsidiary of international bank Deutche Bank, was ordered to pay £800,000 in damages to Helen 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.
Green gave evidence that over a four-year period, four female colleagues stonewalled her, laughed in her face, removed her name from circulation lists, hid her post and removed papers from her desk. Evidence from former workers in the “department from hell” described how they too had been targets of bullying, which had gone on unchecked for a number of years.
In practice, a claim based on the Protection from Harassment Act 1997 is difficult and costly to pursue and is subject to a number of limitations. In particular, the conduct must be very serious. The claim will only succeed if the victim can produce evidence of a “course of conduct” which crosses the boundary between “unattractive and even unreasonable conduct” to become “oppressive and unacceptable and “of an order which would sustain criminal liability” (Sunderland City Council v Conn [2008] IRLR 324):
Mr Conn’s claim was based on the behaviour of his foreman. He produced evidence that the foreman lost his temper twice, acted aggressively and threatened violence. The first time, he demanded to know who had left work early, and when Mr Conn refused to tell him he shouted, and threatened to smash a window. The second time, he asked Mr 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 Act. A course of conduct requires more than one criminal act. 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.
Sunderland City Council v Conn [2008] IRLR 324
In a later employment case, Veakins v Kier Islington Limited [2010] IRLR 132, the Court of Appeal confirmed the need to produce evidence of criminal conduct, and emphasised that in the “great majority of cases”, the correct remedy for “high-handed or discriminatory conduct” is found in the employment tribunal and not the civil and criminal courts. Any member considering making a claim under the PHA 97 should take legal advice as soon as possible.