Protection from Harassment Act 1997

In addition to possible liability under employment legislation, employers can be vicariously liable under the Protection from Harassment Act 1997, (PHA) for acts of harassment committed by their employees in the course of their employment.

The Protection from Harassment Act makes harassment both a criminal and civil offence providing at section 1 that:

1     A person must not pursue a course of conduct:

(a)  which amounts to harassment of another, and

(b)  which he knows or ought to know amounts to harassment of the other.

The Protection from Harassment Act does not define harassment, although references to harassment are said to include ‘… alarming the person or causing the person distress …’  section 7 (2).

At the time of its implementation, the Protection from Harassment Act was primarily seen as a means of protection for those suffering from harassment which took the form of stalking. The Protection from Harassment Act was not originally envisaged as an additional mechanism for rendering employers liable for workplace harassment. This was regarded as an area in which there was already suitable protection from both the anti-discrimination legislation and via the civil law (i.e. through personal injury claims) that the employer was negligent in not stopping the bullying/harassment taking place.

However, in 2006 the House of Lords in the case of Majrowski [2006] UKHL 34 decided that the Protection from Harassment Act does in fact cover the behaviour of employees at work, even when the employer has not caused the offending behaviour.  Such employers have vicarious liability for the acts of their employees.

The House of Lords were quick to point out that in order for liability to be established a course of conduct that was sufficient to constitute harassment had to have taken place. Their Lordships commented that such conduct had to be beyond the ordinary irritations and annoyances which could occur in day to day life and had to be genuinely offensive and unacceptable behaviour, the gravity of which would probably be sufficient to sustain criminal liability under section 2 of the Act. 

Unfortunately, the reality is Majrowski gave the green light to a new stream of harassment claims placing reliance on the Protection from Harassment Act.

For employers, this was a negative development. In particular, the limitation period under the Protection from Harassment Act is six years, not three years as with negligence claims. As such staler claims can be presented.

The key defence of foreseeability of injury is also not a requirement of establishing liability under the Protection from Harassment Act. The majority of civil stress claims based upon negligence fail because the claimant cannot establish that his or her employer knew or ought to have known that he or she was becoming psychiatrically ill. 

An employer in an employment discrimination claim based on harassment, if he shows he took such steps as were reasonably practicable to prevent an employee doing such acts had a defence. There is no such provision under the PHA.

Also under the Protection from Harassment Act, you can recover damages for anxiety falling short of an identifiable injury to health, i.e. injury to feelings. Such awards are not covered by the Employers Liability (Compulsory Insurance) Act 1969.

Under the PHA the Claimant has to establish that the harassment complained of was within the course of the harasser’s employment but again based on an already decided law that is very easy to do. See Lister v Hesley Hall [2002] 1 AC 215.

One act of harassment is not sufficient under the PHA. You need a course of conduct so two acts from the same person or you have two individual acts from different people but it has to be established that those two acts are linked.

The courts have regularly suggested that they are well able to determine what is or is not harassment. The reality is that different judges come to decisions that conflict.

In Thomas v News Group Newspapers [2001] EWCA 1233, Lord Phillips described harassment as ‘conduct targeted at an individual which is calculated to produce the consequences described in section 7 which is oppressive and unreasonable’.

Section7 (2) PHA states harassment includes alarming the person and causing them distress.

Conduct includes speech as well as actions.

In Green v DB Group [2006] EWHC 1899, Owen J said that there must be conduct:

1. Which occurs on at least two occasions;
2. Which is targeted at the claimant;
3. Which is calculated in an objective sense to cause alarm or distress
4. Which is objectively judged to be oppressive and unreasonable

This analysis was adopted in the recent case of Rayment v MOD High Court 18 February 2010. 

All nice and clear then? Well, no not really. The use of the Protection from Harassment Act continues to expand and thus, for example, it was used in the case of Singh v Bhakar, Nottingham County Court, 24 July 2006 by a daughter against her mother-in-law.

Sanity seemed to have been restored in the case of Conn v Sunderland [2007] EWCA 1492, with the Court of Appeal giving a decision that appeared to ward off claims under the Protection from Harassment Act.

In Conn, Gage LJ again made a distinction between unattractive and even unreasonable conduct and conduct that was oppressive and unacceptable. It was noted that the context was important, e.g. it would differ from the barrack room to the hospital ward.  The case raised the bar for what amounted to harassment as conduct had to be sufficient to be so bad as to be criminal in nature.

In Allen v South Southwark Court of Appeal 12 November 2008, the PHA was used by a claimant where the council brought numerous sets of proceedings for possession due to non-payment of rent. The Court of Appeal whilst suggesting the claimant had difficulties in pursuing such a claim allowed the matter to proceed on and not strike out the claim.

In Ferguson v British Gas [2009] EWCA 46, the Court of Appeal again found in favour of the claimant. They refused to strike out a claim for sending unjustified invoices and threatening to cut off her electricity supply. This they said could be unacceptable and oppressive conduct.

The cases of Allen and Ferguson far from helping to clarify the position with regards to civil liability under the Protection from Harassment Act reopened the issue as to what behaviour could amount to harassment from the position as it was understood in Conn. From Conn, it appeared that the conduct complained about must be sufficient to establish criminal liability to amount to harassment. i.e. a high level.

If this was not enough the Court of Appeal had another go at interpreting the Protection from Harassment Act in Veakins v Kier Islington Ltd [2009] EWCA 1288. 

Judy Veakins, an electrician, complained her line manager did not like her and told her off in front of others. She felt picked on and there were disputes over timekeeping. On one occasion she was sworn at, albeit it was accepted swearing occurred in the working environment. Finally, her line manager ripped up her letter of complaint in front of her. 

The Court of Appeal allowed the claimant’s appeal and found for her. 

They said that the key question remained as follows:

“Where the quality of the conduct said to constitute harassment is being examined, Courts will have in mind that irritations, annoyances, even a measure of upset arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable and conduct that is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable, the gravity of the conduct must be of an order which would sustain criminal liability under section 2 of the PHA”.

This is actually a quote from Lord Nicholls in Majrowski.

We would suggest that the behaviours described by Ms Veakins were not extraordinary as Lord Justice Maurice Kay considered them to be. The only saving grace though was the apparent reintroduction of the requirement that the conduct would be sufficient to establish criminal liability.

Another win for the claimant is the case of Rayment v MOD 18 February 2010. In that case, the court accepted that the Protection from Harassment Act claim was made out in relation to matters such as the displaying of explicit pornographic pictures. Other matters such as the state of the female toilets or a refusal to assist the claimant with a computer program were held not to be.

In Mullens v Accenture, 13 July 2010, although an internal investigation handed out a warning about management style and inappropriate language was used, the court decided that the line had not been crossed to “generally offensive and unacceptable behaviour”.

In Dowson v Chief Constable of Northumbria Police: 2, 20 October 2010, although a Senior Officer was found to be insensitive, overbearing and belittling, that did not amount to harassment and the claim failed.

So where are we?

Despite it being suggested by Lord Phillips in Thomas v Newsgroup 2001 that harassment has a meaning which is generally understood. It is not. The courts will continue to be clogged up with arguments about which side of the line poor behaviour falls.