Green v Deutsche Bank Group Services (UK) Ltd -
EWCH 2006
In our breaking news SMIB circulated in July of this year we
discussed the decision of the House of Lords in the case of
Majrowski v Guy's and St. Thomas' NHS Trust. As you might
recall the Lords decided that employers could be vicariously liable
for the actions of employees amounting to harassment in terms of
Section 3 of the Protection from Harassment Act 1997. The Lords
recognised in the Majrowski case that by extending the
concept of vicarious liability of employers to a Statute designed
principally to regulate behaviour between individuals they created
a situation where employers could be liable for employees in
circumstances where they might not know anything about the conduct
or have much of an opportunity to regulate it. It was also
recognised that the 1997 Act does not provide any statutory
defence. The Lords suggested that the courts might apply the common
law test for vicarious liability when considering whether employers
are vicariously liable under the 1997 Act. The common law test is
that the action which caused the harm must have been committed by
an employee "acting in the course of his employment".
Hot on the heels of Majrowski comes the decision of
Justice Owen in the case of Green v Deutsche Bank Group
Services (UK) Ltd. The pursuer joined the defender's company
secretariat department in 1997. Her job application disclosed that
she had suffered a recent depressive illness arising out of her
family circumstances. She claimed that harassment at work caused
her to develop a major depressive disorder leading to admission to
hospital and ultimately termination of her employment.
She brought the claim against the defendants both at common law
and under the Protection from Harassment Act 1997.
The defendants were found liable on both counts but for present
purposes we will focus on how the claim under the 1997 Act was
dealt with. The pursuer claimed to have been harassed by different
people and in different ways over the period of her employment with
the defenders. From the day she started until mid-1998 she focussed
on the behaviour of four female support staff members in her
department. The behaviour complained of included ignoring/failing
to acknowledge her or alternatively laughing uncontrollably as she
walked past, interfering with her work activities by withholding
her post and taking papers off her desk, excluding her from group
activities such as department lunches and removing her name from
internal circulation lists.
Having heard the evidence Justice Owen suggested that although
the individual incidents looked at in isolation were childish and
petty what the courts should be considering was the cumulative
effect on the pursuer of having to put up with such behaviour day
after day. He had no difficulty in finding that during this initial
period she had been the subject of a "relentless campaign of
mean and spiteful behaviour designed to cause her stress".
By mid-1998 the four women in question had left the department
and from that point on to November 2000 the pursuer's complaints
related to her treatment by a male colleague who had started at
roughly the same time and was doing effectively the same job. The
colleague took credit for work that she had done, intentionally
withheld information so that she was unable to complete assignments
in time and generally took every opportunity to make her look
incompetent and inefficient in the eyes of others. Justice Owen
accepted that he had conducted "a sustained campaign against
her in an attempt to raise his own profile".
The court also recognised that during both periods the pursuer
regularly complained to her line managers and to the company's HR
department but nothing of substance was done.
Having decided that the conduct amounted to harassment under the
1997 Act Justice Owen then clearly followed the path suggested by
the House of Lords in the Majrowski case by asking whether
it was appropriate for the defenders to be made vicariously liable
for the conduct. He suggested that for a claim under the Act to
succeed it would not be enough for the claimant to prove just that
the activities which caused the harm occurred at the place of work
during business hours. He indicated the correct approach was to
concentrate on whether there was a genuine connection between the
nature of the employment and the activity which caused the harm and
ask whether in looking at matters as a whole it was just and
reasonable to hold the employers vicariously liable. He had no
difficulty in deciding that during both of the periods of conduct
complained of the actings of the employees had a sufficiently close
connection with her employment. He pointed out that in relation to
the behaviour of the support staff withholding mail and
administering internal circulation lists were activities that they
needed to undertake in the course of their employment. In relation
to the second period Justice Owen again found that the behaviour of
the claimants contemporary was directly and intimately connected
with the work that he was engaged to perform.
We remain concerned about the extension of vicarious liability
for employers to a statute which is designed to regulate conduct
between individuals. There is a real risk that employers will
become saddled with liability for petty disputes between individual
employees that in reality have nothing to do with their working
environment. In order to prevent a further, and perhaps unfair
burden, falling on employers the courts are going to have to be
very careful about the sort of conduct that they accept as
amounting to harassment under the 1997 Act and critically whether
that conduct can genuinely be said to have arisen out of the scope
of the employment.
The courts would do well to bear in mind the guidance given by
Lord Glenlee in 1826 in the Scottish case of Baird v Hamilton
(1826 SC 4 Shaw 790 at page 791) where he said in relation to
vicarious liability "the master is liable for the carelessness
of his servant. It is essential, however that damage should arise
from the way and manner of doing the master's work. For, suppose a
servant takes offence at another man, and horse whips him, though
at the time he is conducting his master's cart, yet the damage is
not inflicted in the doing of it - he is acting for himself, and
the master is not liable".
There are now signs that cases under the 1997 Act are reaching
the Scottish Courts. GvS (2006 CSOH 88) called before Lord
Turnbull in June of this year in relation to an argument about
whether the case should proceed under the specific rules for
personal injury actions or as an ordinary action. From the brief
report available the case is between two individuals, a lady aged
36 and a man whose age is not given. It is said on the lady's
behalf that the man scared and distressed her with his conduct and
that he contacted her on various occasions saying that he wished to
marry her and that unless she agreed to see him he would destroy
her career. It is claimed that the man's conduct was sufficient to
amount to harassment in terms of the 1997 Act and that as a result
the lady had suffered anxiety and stress but it was specifically
not suggested that the injuries were sufficient to amount to any
form of recognised psychiatric illness.
Lord Turnbull decided that any condition short of a recognised
psychiatric illness should not in terms of the rules of court be
allowed to proceed under the specific provisions relating to
personal injury actions. The merits of the case were not discussed
in any detail as the decision was a procedural one not much can be
taken from it at this stage. Perhaps one point of comfort that can
be taken is that actions for damages brought under the Protection
from Harassment Act are not amongst those listed in the rules
governing the Court of Session as being appropriate to be heard by
a civil jury.
The pursuers' solicitors applied to have the case heard by a
civil jury. The defenders objected on the basis that the loss of
employability claim was unspecific, highly speculative and
therefore unsuitable to be put before a jury.
The case called before Lady Paton and the defenders argued that
neither the Writ nor the Statement of Valuation of Claim gave any
indication of the evidence which would be led in support of the
claim or the way in which the figure of £100,000 had been arrived
at. It was pointed out that there was a vast range of salaries
payable to professional footballers essentially from Cowdenbeath to
Chelsea and no indication was given here of the level of salary the
pursuer was expecting nor the length of time he thought he might
have been in the professional game. The defenders argued that the
lack of specification made the case unsuitable to be heard by a
jury as there was really no material which would allow the trial
Judge to reasonably direct the jury on what to take into account
when assessing the potential value of the claim.
On behalf of Wayne Logie it was argued that given he was 14,
still at school and obviously not employed at the time of the
accident this element was necessarily speculative. The £100,000
figure was intended as an indication of the maximum award that
might be expected. It was pointed out that this was not
unreasonable given that some professionals at the top end of the
game could earn that in a month, if not a week.
Lady Paton decided that the case was suitable to be heard by a
jury. She pointed out that this was a claim for loss of
employability rather than future loss of earnings and claims of
that type were more often than not dealt with on a lump sum basis.
She accepted that given Wayne Logie's age and the point his
footballing career had reached at the time of the accident his
future was very much a matter for speculation. She felt however
that a Judge would be able to give adequate direction to a jury on
the nature of the loss of employability award and the broad common
sense approach that they should adopt when estimating the value of
the claim in all the circumstances. She also suggested that in
reality a jury might be as well placed as a Judge to assess what an
appropriate award might be.
We are not normally fans of civil jury trials. On the other
hand, jury members may be more familiar than the judiciary with the
trials and tribulations of aspiring young players.They may have
seen the television shows Football Icon or Blue Heaven ...
As a result they might have more material against which to
measure the reality of the pursuer's claim that he would have
pursued a career as a professional footballer other than the fact
that he shares a Christian name with a certain Mr Rooney. On the
other hand a jury might still believe that sporting miracles
happen, perhaps encouraged by Scotland's result against France.
In summary the fact that a claim is speculative will not
necessarily make it unsuitable to be heard by a jury.