The Law of Harassment (see Protection from Harassment Act 1997) can a useful tool to Claimant’s who have been bullied at work. Ever since 2005 when Mr Majrowski , (a clinical audit controller in the NHS ) was successful in establishing that his employers were vicariously liable for the actions of a departmental manager who was bullying and intimidating him, the Harassment Act has been a potential source of a Civil action.
However, since then the courts have restrictively interpreted the meaning of harassment to such an extent that the use of the Act has become narrower and narrower.
As Lord Nicholls of Birkenhead stated in Majrowski, "The purpose of this statute is to protect victims of harassment, whatever form the harassment takes, wherever it occurs and whatever its motivation. The Act seeks to provide protection against stalkers, racial abusers, disruptive neighbours, bullying at work and so forth."
To 'harass' as defined in the Concise Oxford Dictionary, 10th edn, is to "torment by subjecting to constant interference or intimidation". The Court of Appeal stated that the conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive.
Given this definition, it is instructive to consider what has in recent years founded criminal liability in the courts. This year two Police officers found themselves in the Court of Appeal on this very issue. Mr Curtis, the appellant, was suffering from depression and drank to excess. His relationship with Donna Brand, the complainant was described as 'volatile'. The prosecution was based on six incidents over a period of nine months which occurred while the appellant and Donna were living together.
The six incidents were spread over a period of several months and consisted of drunken arguments occasionally accompanied by assaults and one incident when the appellant pulled the handbrake up on a car being driven by Donna. In between incidents the parties reconciled.
The issue before the Court of Appeal was whether, on the evidence, the appellant had pursued a course of conduct in relation to Donna which amounted to harassment of her. If he did, there was sufficient evidence to go to the jury on the 'fear' element in the Act.
The Court of Appeal appreciated that the incidents between the parties were not trivial. However, they could not conclude that, in this volatile relationship, the six incidents over a nine-month period amounted to a course of conduct amounting to harassment within the meaning of the statute. The spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides, which were the hallmarks of the case, interspersed with considerable periods of affectionate life, could not be described as such a course of conduct.
The case suggests that, to be successful in a claim under the Harassment Act, incidents complained of not only have to be actionable at criminal law but also of a character that, given the day to day conduct of the parties fit into a consistent campaign. Despite the fact that the individual incidents in Donna’s case were “far from trivial and significant force was on
occasion used” harassment was not found because the incidents were interspersed with affection and reconciliation.
Reconcililations or the fact that both parties are passionate individuals given to volatile conduct are clearly relevant in any claim under the Harassment Act. Where the injured party fights back or tries to reconcile it seems the courts are less likely to find such conduct harassment.
Case law such as this is likely to be seized upon by Defendants in civil claims. My concern in terms of this being used in a claim against an employer is there is always an imbalance in the relationship between the abused and the abuser. A harassed employee is likely to try anything to reconcile the relationship. Employers will seek to argue that things are ‘just part of the everyday banter’ or that the employee never took an act of harassment seriously in order to establish that there was no course of conduct .
A restrictive approach in employer’s liability claims would undermine the intention of the act if it gives too strong an emphasis on such subjective interpretations of conduct.
Submitted by Marcus Weatheryby
