Being an employer is not fun sometimes-especially when your employees do silly acts that make you liable for damages.
The House Of Lords (HL) has held an employer can be held vicariously liable under the above 1997 Act.
Under the Act a person must not pursue a course of conduct that amounts to harassment or which s/he knows amounts to harassment of another (S1(1)).
S7 includes references to causing the person distress or alarm.
An employer is vicariously liable for the torts of its employees “in the course of employment”. This is widely interpreted but relates to the activity of the employee that is: “so closely connected with the employment that it would be fair and just to hold the employee liable” (Lister and others v Hesley Hall Limited).
In the case to hand (Majrowski (M) v Guy’s and St Thomas ’ NHS Trust) the claimant alleged his departmental manager had bullied, intimidated and harassed him in the course of her employment.
M had appealed to the Court of Appeal (CA) on a point of law and had won-CA had allowed the appeal but in turn the Trust has appealed to HL.The HL upheld the CA’s decision holding:
- An employer can be vicariously liable for the acts of its employee that broke a statutory duty unless the statute precluded this expressly or impliedly;
- Specifically with reference to the 1997 Act an employer could be vicariously liable.
There are a number of advantages compared with traditional discrimination claims for employees who bring harassment actions through the county and high courts:
- there is no need to show discrimination;
- anxiety or distress can be easier to show-a lower hurdle operates than under common law;
- there is no need to show personal injury;
- employers will not be able to rely on the reasonable steps defence available under discrimination laws and
- the period of claim is longer-six years compared with three for personal injury.
though against this a “course of conduct” is required as opposed to a single incident with harassment under the discrimination laws.
Following on from the high profile High Court case of Green v DB Group Services Limited case the other month where the female claimant was awarded £800,000 approximately for harassment by other female employees this case shows that employers who are complacent and do not monitor what their managers and senior executives are doing about harassment in practice are heading for a fall.
The above widens the scope for harassment claims which now may be brought by employees under the 1997 Act or by way of personal injury claims.
Employers have to police harassment actively and should use harassment counsellors, helplines, training and have a zero tolerance policy to harassment lest they fall foul of these rules.
If you are an employer and require specific advice or drafting services to cover your policies and employment contracts allowing you to counterclaim against the wrongful acts of your employees then do get in touch QUOTING ANTI-HARRASSMENT ADVICE.
Likeswise If you are an employee and require specific advice to cover bullying and harrassment then do get in touch QUOTING BULLYING ADVICE.
WE PROVIDE NO OBLIGATION QUOTES AND INITIAL FREE CONSULTATION FOR BOTH SETS OF ADVICE.
