Additional Rights for 'bullied' Employees - Employment Law News Spring 2007

01 April 2007

The Protection From Harassment Act 1997 (the Act) was introduced initially to deal with domestic scenarios such as stalking. In July 2006, the House of Lords ruled in the case of Majrowski v. Guys and St Thomas NHS Trust that employers can be held liable under the Act for acts of harassment committed by their employees against other employees. The effect of this has been to widen the scope of the Act to cover many workplace bullying and harassment situations.

It was, until this case, difficult for employees who have suffered bullying or harassment in the workplace to bring successful legal action against their employers. Employees could only normally bring a claim if they were able to establish a link between the bullying or harassment and unlawful discrimination. If the harassment was serious enough, the employee may have been able to resign and claim constructive dismissal. However, this was often the last resort for most employees as it would involve them leaving their employment and losing their income to pursue a constructive dismissal claim, which required them to establish that the employer had fundamentally breached their contract of employment. This was frequently a difficult hurdle for the employee to overcome.

The Act gives employees the right to bring a claim whilst they remain in employment or after employment has ended, if they can show the following:

• They had been harassed on at least two occasions;
• The harassment must have been targeted at them personally;
• It must have been intended to cause distress; and
• The harassment would also have to be objectively judged as oppressive and unreasonable.

If an employee is able to establish that the four elements were present, then an employer would have no defence to a claim under the Act.

The Majrowski case states that if one employee has treated another employee as described above, then the employer will be vicariously liable if that conduct was in any way connected with their employment.

Employers should also be aware that there is no limit on compensation under the Act and employees can wait up to six years before bringing a claim. If employees do bring a claim under the Act, it would be a claim in the County or High Court rather than the employment tribunal. As a result, if an employee brings a successful claim under the Act, the employer could be liable to pay some or all of the employee’s costs, and vice versa.

Following this important development in the law, there is considerable concern amongst employers that they will face far more costly claims against them from employees who in the past have had little recourse to the law. We are aware of at least one trade union firm that is now going through their rejected claims over the past few years to see if any of those claims can now be brought against employers under the Act.

The most important thing that an employer can do to minimise their exposure to this new risk is to ensure that it deals with each and every incident of harassment at work and tries to ensure that there is never more than one act of harassment against an employee that could give rise to liability. The best way to deal with this is to have in place a robust anti bullying and harassment policy that is strictly enforced. This should be backed up with training to ensure that employees are aware of what is and what is not acceptable.

It is unclear at this time how many claims will now be brought under the Act, but it is anticipated that the numbers could be significant.

‹ Back

• © Furley Page LLP 2008
• | LLP
• | Terms and Conditions
• | Privacy Policy
• | Site Map
• | Accessibility