Employment Law – Harassment – Vicarious Liability of Employer

The case of Conn v Sunderland City Council [2007] involved an employee who claimed that his employer was vicariously liable for his harassment by his foreman. So far as is material, according to s.1 of the Protection from Harassment Act 1997 (“the Act”):

“(1) A person must not pursue a course of conduct –

(a) Which amounts to harassment of another, and

(b) Which he knows or ought to know amounts to harassment of the other...”.

In the Act, s.2 provides, so far as material, as follows:

“(1) A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence...”.

Additionally, s.3 provides as follows:

“(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question”.

The claimant in this case was employed as a paving layer by the defendant local authority. His employment was eventually terminated in 2005. Subsequent to his termination, he commenced proceedings against the local authority under the Act. He alleged that the local authority was vicariously liable for the harassment inflicted on him by his foreman whilst in employment.

The claimant alleged five separate incidents which he argued amounted to harassment. It was found that only two of the incidents which he alleged had been proved.

§   In the first incident complained of, the foreman had asked the claimant and two others to give him the names of other workers who had left the site early. When they had refused to do so, the foreman lost his temper and threatened to smash the window of the portakabin with his fists. He further threatened to report them to the personnel department. The two other men present at the incident stated that they were not bothered by the foreman's behaviour.

§   The second incident involved the foreman asking the claimant in this case why he was silent. The claimant replied to the foreman that he would only engage in conversation with the foreman on matters relating to work. That again had led the foreman to lose his temper. The foreman threatened to “give him a good hiding” even if it meant that the foreman would be dismissed.

It was held that the two incidents amounted to a course of conduct which constituted harassment under the Act.

The local authority appealed against this decision to the Employment Appeals Tribunal.  The local authority argued that on the facts the two incidents could not constitute harassment for the purposes of the Act.  The appeal was allowed.

It was held on appeal that harassment was left deliberately wide by the statute. A civil claim for harassment could only arise as a remedy for conduct amounting to a breach of s.1 of the Act, which by operation of s.2 would also amount to a potentially criminal offence.

What amounted to the difference between ‘unattractive and unreasonable conduct’ and ‘oppressive and unacceptable conduct’ would depend on the context in which the conduct occurred.  The main factor was whether the conduct was of such severity as to justify the operation of criminal law.

In this case, it was deemed incorrect, considering the facts, to find that the foreman’s conduct amounted to harassment. It was therefore held that the first incident did not cross the line between ‘unacceptable and unattractive conduct’ and ‘oppressive and unacceptable conduct’.

The conduct may well have been unpleasant, but there was no threat of violence against the claimant, merely a threat to damage property. Furthermore, the two other people involved in the incident were not fazed by it. Accordingly, the incident had been well below the line at which criminal sanctions would have been justified. It therefore followed that it had been wrong to find that the two incidents amounted to the claimant suffering harassment. The employer was therefore not vicariously liable.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.


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