The decision is based on anti-stalking legislation which was
used by an NHS employee to hold his employer responsible for a
superior's treatment of him.
The law in question is 1997's Protection from Harassment Act.
The Act does not define harassment, which has enabled courts to
permit it to mean tabloid newspaper campaigns and the behaviour of
animal rights activists.
The claim of William Majrowski was originally summarily struck
out by the Central London County Court by Judge Collins. "He held
that the 1997 Act was not designed to create another level of
liability in employment law. Employees are already adequately
protected by the common law," said this week's judgment. The Court
of Appeal overturned that decision.
The House of Lords decided that the Act covers the behaviour of
employees at work even when the employer has not caused or failed
to prevent the offending behaviour. Those employers now have
vicarious liability for the acts of employees.
Previously employees had to prove that the employer was
negligent in not stopping bullying taking place and that it had
caused them psychological damage. The new ruling means that
companies can be sued even if the company can not be expected to
have known about the bullying.
"The decision has serious implications for employers as it gives
employees who are bullied or harassed at work a further basis on
which to claim compensation from their employers," said Louise
Donaldson, a senior associate specialising in employment law at
Pinsent Masons, the law firm behind OUT-LAW.COM.
"Moreover, some of the existing limitations and defences will
not be available. For example, an employer has a defence under
existing discrimination legislation if it can show that it took all
reasonably practicable steps to prevent discriminatory harassment
occurring – this defence was recently made out where an employer
had implemented an effective harassment policy. This would not
help an employer facing a claim that it was vicariously liable for
an employee's harassment under the Act," said Donaldson.
Majrowski worked for Guy's and St Thomas' NHS Trust in London
and claimed that his superior, Sandra Freeman, was rude and abusive
to him in front of colleagues. Majrowski, who is gay, claimed that
the abuse was fuelled by homophobia.
The new ruling will open employers to new cases. "It will be
necessary to show that an offence under the Act has been committed
– this involves showing a course of conduct, defined as conduct on
at least two occasions, by an employee amounting to harassment, so
a single act will not be sufficient," said Donaldson. "It is also
necessary to show a sufficient connection between the harassment
and the employment if the employer is to be vicariously liable.
However this is widely construed and any bullying or harassment
taking place at work will almost certainly be covered."
