Employer liability under the Protection of Harassment Act 1997

In the case of Majrowski v Guy’s and St Thomas’s NHS Trust, Mr Majrowski claimed that he had been bullied, intimidated and harassed by his departmental manager. He therefore claimed that his employer was vicariously liable for the alleged harassment prohibited by the PHA 1997. He did not bring a claim directly against his departmental manager.

The Court of Appeal had to determine:

u Whether an employer could be held vicariously liable for a breach of a statutory

duty imposed on its employees.

u Whether an employer could be civilly vicariously liable for a breach by its employee of the Protection of Harassment Act 1997 (PHA 1997).

It was held that vicarious liability was not restricted to common law claims. An employer could be vicariously liable for breach of a statutory duty imposed only on its employee, so long as it was fair and just to impose vicarious liability, and so long as there was a close connection between the employee’s offending conduct and the nature of his employment. This would extend the employee’s breach of statutory duty unless the statute in question expressly excludes vicarious liability.

Although the case of Director of Public Prosecutions v Dziurzynski [2002] EWHC 1380 (Admin), [2002] ACD 88 established that the complainant must be an individual and not a corporate body; the appeal court in Majrowski held that a company could be a ‘person’ capable of harassing ‘another’ within the meaning of the Act.

A recent article in New Law Journal vol. 155 has looked at what this case could mean for employers and compares its scope to current anti-discrimination law. The following observations were made:

u The Act allows individuals six years in which to bring a claim to the High or County Court which is significantly longer than anti-discrimination law, whereby claims must be filed within three months of the date of the last act of discrimination or harassment. It is therefore anticipated that employees may use PHA 1997 simply as a result of being time-barred from bringing a discrimination

claim.

u The PHA 1997 provides a general protection from harassment which means that the right to bring a claim will extend far beyond the employment context to the self-employed, customers and suppliers of the business and members of the public in general. Provided that the conduct was carried out in the course of employment, the employer could be vicariously liable for it. In addition under the PHA 1997 there is no requirement to establish a duty of care or show that the injury was foreseeable unlike a personal injury action.

u There is no defence for an employer for vicarious liability under the PHA 1997. Even if it took reasonable steps to prevent an employee doing the act (a defence under discrimination law) it could still be held liable.

The full case citation is Majrowski v Guy’s and St Thomas’s NHS Trust [2005] EWCA Civ 25. The article by Julie Catton from New Law Journal can be found in vol. 155 No. 7177, pages 768-9.