Employers are liable for the actions of their employees carried out in the workplace. This can include liability for harassment where one employee harasses another. Historically, the Protection from Harassment Act 1997 has been of limited use to employees where the harasser is another employee or a manager. This was because the Act’s primary aim was to deal with stalkers, rather than workplace disputes, it required at least 2 incidents to have occurred and such conduct had to be so serious as to potentially give rise to criminal liability. However, a recent Court of Appeal decision has widened the type of conduct that could be covered by the act, leaving employers exposed.

The Court of Appeal has stated that the correct test is whether the conduct complained of was oppressive and unreasonable. The fact that a prosecutor would be reluctant to prosecute is not relevant. Employers will no longer be able to rely on the defence that an employee must show a criminal prosecution to be likely. They must deal with the behaviour directly and argue that it was not oppressive or unreasonable. Employers will be required to explain the standards of behaviour in the workplace at large as well as by the alleged harasser, although it will still be for the employee to show that the actions complained of were not merely unattractive or regrettable.

The case potentially opens up alternative routes to litigation for workplace stress, bullying and harassment. It is also likely to be used where the conduct complained of does not fall within the discrimination legislation, for example where it is due to animosity or personal differences, or where the employer has a robust defence to a claim of discrimination.

Employees can claim damages. In addition, they can obtain an injunction under the act preventing the harasser from being within a certain distance of them. This can cause difficulties for the employer, where the harasser works with the employee.

The case in question involved an initial dispute over wages, resulting in the employee been told off by her manager. She felt she was picked on and was reprimanded in front of her colleagues. The manager ripped up a letter of complaint she raised and swore on one occasion at her. Such conduct was considered capable of giving rise to criminal liability, was oppressive and unreasonable. Whilst not every case will result in a similar conclusion, employers should ensure they have a harassment policy in place and investigate any concerns promptly.

Posted: February 16th, 2010 under Employment/HR.
Comments: none