IT’S CRIMINAL
Date: March,2010
Author: HReSource
© R2b media Ltd 2008. HReSource™
Although the 1997 Protection from Harassment Act (PHA) was not drafted with the workplace in mind, the Court of Appeal has said in Veakins v Kier Islington Ltd that there is nothing in it to say it could not be used to tackle workplace harassment. However, the conduct has to be “oppressive and unacceptable” and sustain criminal liability.
What happened
Ms Veakins was employed by Kier Islington from September 2003 until July 2005 with no problems, but went on sick leave with depression in September and terminated her employment in June 2006 after a new supervisor - Jackie Lavy - took over. Ms Veakins claimed the supervisor had made life “hell” for her.
Ms Veakins claimed that, as her employer, Kier Islington was vicariously liable for her behaviour under section 1(1) of the PHA.
Section 1(1) of the PHA states that a person must not pursue “a course of conduct which amounts to harassment” of someone else and which “he knows or ought to know amounts to harassment of the other”. "Harassment" is not exhaustively defined but section 7(2) states that it includes "alarming the person or causing the person distress"
Relying on the cases of Majrowski v Guy's and St Thomas' NHS Trust and Conn v Council and City of Sunderland, the county court judge ruled against Ms Veakins on the basis “that the conduct concerned must be of an order that would sustain criminal liability”. In this case, the judge said, it “plainly” was not.
The Court of Appeal, however, disagreed. It said that, since Majrowski, the primary focus for judges, when deciding whether the harassment satisfies the definition in the Act, is whether the conduct is “oppressive and unacceptable” and would sustain criminal liability.
In this case, it said that the substantially unchallenged account given by Ms Veakins of victimisation and demoralisation had reduced a “usually robust woman to a state of clinical depression”. That, said the court was not just unreasonable or part of "the ordinary banter and badinage of life". Instead it had crossed the line into conduct which was "oppressive and unreasonable."
It noted that since the case of Hatton v Sutherland it was more difficult for employees to bring successful negligence claims based on stress at work, as a result of which more employees were turning to the harassment legislation for redress.
Although it was unlikely that Parliament had the workplace in mind when it drafted the legislation, the Court stated there was nothing in it to say it could not be used to tackle workplace harassment. Having said that, however, it implied that in most cases, employees would have to seek redress in the employment tribunal.
It also cautioned that “it should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be "oppressive and unacceptable" but I have done so in circumstances where I have also described it as "extraordinary". I do not expect that many workplace cases will give rise to this liability”.
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