19 February 2008

Companies might be surprised to learn that a law made in 1997 to protect victims of stalkers can now be used by employees who are victims of bullying in the workplace. Even though the employer may not know that one employee is bullying another, he might be liable for the damage caused to the victim.

An employee can claim in negligence against his employer if he can show he has suffered bodily or psychiatric injury through the direct result of the employer’s breach of a duty to take reasonable steps to prevent him suffering such a foreseeable injury whilst at work.  However, the employee needs to inform his employer of this risk before the latter has a duty to take any action. If the employee keeps quiet, a Court may rule that any injury suffered as a result of stress was not reasonably foreseeable. For many, suffering in silence is a preferred option to raising the stakes through a complaint.

One person who chose not to suffer in silence was William Majrowski, whose case against Guy’s Hospital Trust made groundbreaking law in the House of Lords in July 2006.

Mr Majrowski claimed that his departmental manager intimidated him in front of other staff, was excessively critical of his time-keeping and work, imposed unrealistic targets and threatened disciplinary action if he failed to meet them. He also claimed homophobia, as he was gay. The Trust investigated and found that harassment had taken place. Some time after he left the Trust, he sued for damages under the Protection from Harassment Act 1997.

In its defence, the Trust argued that the Act was primarily a legislative response to the public order problem of stalking and was not aimed at workplace conduct. A blameless employer could find themselves sued simply because they had insurance cover and ‘deep pockets’, whilst the perpetrator got away.

However, The House of Lords disagreed. Provided there was a ‘close connection’ between the conduct of the perpetrator and the employer, it found that the employer would be liable. As such, the Trust became liable for the manager’s conduct towards Mr Majrowski and was liable in principle for damages.

The Protection from Harassment Act 1997 entitles a victim to damages for anxiety and any financial loss as a result of harassment committed by another employee at work.  There must be conduct occurring on at least two occasions targeted at the victim and calculated to cause distress, and which is clearly oppressive and unreasonable.

Following Mr Majrowski’s success, there will be a growing number of cases brought under this legislation against employers. If there is a close connection between the perpetrator and the employer, the employer may find themselves liable for damages, even though they may not have been aware of the bullying.

How to diminish the risks? An employer must, at the very least, have an anti-harassment and anti-bullying policy in place and must rigorously enforce breaches of it. A ‘zero tolerance’ approach is needed.   Regular reminders about the policy, training all levels of staff about the policy, and encouraging all employees to report any aggression at once will all assist in reducing the likelihood of a claim succeeding.

Martin Keegan, Disputes Partner, Wards Solicitors
martin.keegan@wards.uk.com

0117 929 2811