Harassment - Vicarious Liability for Acts of Employees

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.