Bullying and harassment: Majrowski case

Sarah-Marie Williams of Clyde & Co begins a series of articles on bullying and harassment with a look at the recent House of Lords decision in the Majrowski case.

It is well established that if an employee is subjected to bullying or harassment at work he or she may bring a tribunal claim for:

negligence for breach of the employer's duty of care resulting in personal injury;

breach of an implied or express term of the employment contract;

unfair dismissal where the breach of contract amounts to a constructive dismissal;

breach of a statutory duty (for example, the employer's duty to provide a safe place and system of work under the Health and Safety at Work Act etc 1974); or

discrimination or harassment under the discrimination legislation.

The House of Lords decision in Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL has created an alternative course of action for employees who have been subjected to harassment, namely a claim under the Protection from Harassment Act 1997. The House of Lords held that, under the 1997 Act, an employer may be vicariously liable for harassment committed by an employee in the course of employment.

Mr Majrowski was employed by Guy's and St Thomas 's NHS Trust. He brought a county court claim against the Trust under the Protection from Harassment Act 1997, section 3, alleging that his departmental manager had bullied and harassed him at work. In striking out the claim, the county court held that Parliament had not intended for the general principles of vicarious liability to apply to the 1997 Act, so a claim could be brought against only the perpetrator and not his or her employer (ie an employer could not be vicariously liable under the 1997 Act).

Court of Appeal

Mr Majrowski appealed to the Court of Appeal. The court held that employers could generally be vicariously liable for a breach of a statutory duty committed by an employee in the course of employment (unless the legislation in question excludes such liability). In addition, it held that under the Protection from Harassment Act 1997 employers may be vicariously liable for the harassment of third parties. The Trust appealed to the House of Lords.

House of Lords

The House of Lords agreed with the Court of Appeal's judgment, but for different reasons. In coming to its decision, the House of Lords considered two questions.

First, it considered whether or not there is a general rule that an employer can be vicariously liable for an employee's breach of a statutory duty. In answering this question, the common law principles of vicarious liability were revisited. The House of Lords looked at the principle that the employer is vicariously liable for the wrongdoings of its employees where these occur in the course of employment (such as in Lister and others v Hesley Hall Ltd [2001] IRLR 472 HL). It discussed the wider interpretation of 'in the course of employment'; for the principle to apply the employee's conduct must be so closely connected with his or her employment that it is fair and just to hold the employer liable. The House of Lords felt that there was no basis for limiting this principle of vicarious liability to common law wrongs and, therefore, found that an employer is, as a general rule, liable for an employee's breach of a statutory duty (unless such liability is excluded by the legislation in question).

Second, the House of Lords considered the question of whether or not an employer may be vicariously liable for an employee's breach of the Protection from Harassment Act 1997. It felt that the wording of the legislation provided the answer to this question. Although sections 1 to 7 of the Act apply to England and Wales, the House of Lords considered it appropriate to take into account sections 8 to 11, which apply only in Scotland. In fact, the main reason for the House of Lords decision was as a result of the Scottish provision under section 10(1). It felt that, despite the different provisions in Scotland and in England and Wales, Parliament did not intend there to be any difference in substance between the two jurisdictions as to the scope of the civil remedy for harassment. The Scottish provision provides that an extension of the limitation period for actions of harassment to the date when the pursuer became aware, or when it would have been reasonably practicable for him or her to have become aware, 'that the defender was a person responsible for the alleged harassment or the employer or principal of such a person'. The House of Lords did not consider that the effect of section 10 was to provide for vicarious liability in Scotland but not in England and Wales. Reading the Act as a whole, it felt that section 10 served to clarify that the Protection from Harassment Act 1997 can give rise to vicarious liability, both in Scotland and in England and Wales.

The appeal was dismissed and Mr Majrowski was permitted to proceed with his case of harassment.

Conclusion

This decision provides that employers may be vicariously liable for a breach of a statutory duty imposed on their employees and that vicariously liability is not restricted to common law claims. An employee suffering from bullying or harassment in the workplace will, as a result of the decision in the Majrowski case, be able to bring a claim both against a fellow employee (the perpetrator) and against his or her employer for vicarious liability for the employee's breach of the Act.

Although the intention behind the House of Lords decision was to protect individuals from harassment, regardless of the cause, it will inevitably extend employers' liability. Clearly, the possibility of bringing a claim under the Protection from Harassment Act 1997 will be welcomed by employees, particularly as they will have six years to bring a claim, rather than the three months generally allowed under the discrimination legislation and three years for personal injury claims. Having said that, many employees are likely to be discouraged from bringing such claims as a result of the cost implications of having to bring a claim under the 1997 Act in the county court or High Court rather than bringing a claim in the employment tribunal, which will have no jurisdiction. However, for the determined litigant there is a possibility of recovering costs against the employer if the case is successful.

Next week's article will look at policies and training in relation to bullying.

Sarah-Marie Williams is a solicitor in the employment team at Clyde & Co (sarah-marie.williams@clydeco.com)

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