Margaret Gennelli Malcolm v Dundee City Council - Court of
Session, 22 February 2007
Mrs Malcom sought damages from her former employers in respect
of alleged harassment at work in 1998/99, 2001 and early 2002 under
The Protection from Harassment Act 1997. It was not clear for how
long the alleged harassment continued between her return to duties
in February 2002, following a short stress related absence, and
when she finally went off work on 24 October 2002. She resigned on
29 November 2002. Mrs Malcolm was active in pursuing her grievances
over the alleged harassment with the Council from at least 2001,
having instituted three separate claims before the employment
tribunal. She claimed that only during the tribunal hearing, which
concluded in summer 2006 following 33 days of evidence, was she
made aware of the potentially serious nature of her psychiatric
condition. She instructed solicitors in Dundee in September 2005
who instructed Edinburgh agents on 31 October. They in turn
instructed Counsel to prepare a summons on 3 November, which was
served on 24 November. The Council argued that the action was
timebarred as it was raised more than 3 years after the last
possible date on which any alleged harassment ceased. Mrs Malcolm
argued that the court should use its equitable discretion to
override the statutory time limits, having conceded that the action
had timebarred on 24 November 2005.
The court identified a number of principles applicable in
timebar cases:-
1. Actions of harassment should be brought within three years of
when the alleged harassment ceased and defenders should be entitled
to "close their books" on a potential claim after that time.
2. The onus is on the pursuer to persuade the court to override
the time limit.
3. Before the court can properly be asked to exercise its
discretion a pursuer must plead the relevant facts and
circumstances to allow the court to do so.
4. Every case must depend upon its own facts and
circumstances.
5. The principal factors for the consideration for the court are
the circumstances in which the action was commenced out of time,
the conduct of the parties generally, and the potential prejudice
to be sustained by the pursuer or the defender in the event they
are unsuccessful.
The court decided it would not be equitable for Mrs Malcolm to
proceed because:-
1. The action was commenced at least one month and possibly
several months following the expiry of the triennium.
2. Mrs Malcolm had actively pursued grievances both during and
after her employment with the Council and was clearly aware of her
exposure to alleged harassment from work colleagues, the fact that
the Council was the responsible employer and the potentially
serious effect of the alleged harassment on her mental health.
3. There was no worthwhile explanation as to what steps she had
taken to explore the possibility of raising court proceedings
between March and September 2005, which was potentially important
given the last specific incident of harassment was said to have
taken place in February 2002.
4. There was no satisfactory explanation as to why her
solicitors consulting in September 2005 took the view that the
triennium did not start to run until her retirement given that in
terms of the Act the date that actual conduct ceased is an
important date for consideration.
. No explanation was given as to why it took one month for
counsel to be instructed to prepare a summons or why it took more
than two weeks to have the summons served.
6. There was no particular prejudice to Mrs Malcolm if the court
refused to exercise its discretion. The court was not persuaded
that the possibility of an alternative claim elsewhere could be
excluded. Her lack of success before the employment tribunal could
not properly serve as a reason why a timebarred court action on
similar grounds should be allowed to proceed.
7. The prejudice that the Council could suffer was significant
given that they had already spent 33 days contesting Mrs Malcolm's
claim before an employment tribunal and if the court allowed the
action to continue they would face having to relitigate the whole
issue with a legally aided pursuer and having to investigate and
contest entirely new issues such as the quantification of the
claim.
Following the House of Lords decision in Majrowski (reported in
our Breaking News bulletin of July 2006), it is likely that we will
see an increase in stress/harassment claims. The above case
demonstrates the importance of the three year time limit for the
raising of such actions and illustrates why the defence should
always keep in mind the time-line of events.