Veakins v Kier Islington Limited [2009] EWCA Civ
1288
In this case the Court of Appeal, considers the issue of
harassment in the workplace, and in particular, what form the
conduct must take to constitute harassment for the purposes of the
Protection from Harassment Act 1997.
Section 1(1) of the Act provides that a person must not pursue a
course of conduct which amounts to harassment of another and which
he knows or ought to know amounts to harassment of the other. The
prohibition is enforceable in the civil and criminal courts.
"Harassment" is not exhaustively defined by the Act but Section
7(2) provides that it includes "alarming the person or causing the
person distress".
Miss Veakins, the appellant, sought damages because she claimed
that she was harassed at work by her supervisor, Mrs Jackie Lavy,
for whose acts the respondents were vicariously liable. Miss
Veakins was employed by Kier Islington Limited as an electrician,
initially as a trainee, from September 2003 to September 2005. She
then went on sick leave for depression from September 2005 until
June 2006, when she decided to terminate her employment. Her health
problems were directly attributed to her supervisor who had
commenced a campaign of "harassment" from July 2005 which initially
constituted a dispute over a wages problem and involved an
embarrassing telling off in front of others.
However, the conduct escalated and Miss Veakins maintained that
Mrs Lavy began to pick on her persistently, singling her out from
her fellow employees for no reason. There were further disputes
about timekeeping. There was a complaint that Mrs Lavy had on one
occasion been abusive to Miss Veakins, although she acknowledged
that the words used were not in themselves unusual in the working
environment. There was also a complaint about Mrs Lavy ripping up a
letter of complaint written by Miss Veakins. In the words of Miss
Veakins: Mrs Lavy made her life "hell". As well as belittling her
in front of other staff members the appellant confirmed that Mrs
Lavy would ask other employees questions about Miss Veakins'
private life to arm herself with useful material for a campaign of
victimisation. It was notable at trial that none of the matters
contained within Miss Veakins' witness statement were
challenged.
Apart from the conduct of Mrs Lavy, Miss Veakins enjoyed her
job; she had worked hard for the company for over two years without
incident.
Despite putting forward compelling evidence, which was not
disputed, that she had been subjected to a course of conduct by Mrs
Lavy which she alleged constituted harassment, the trial judge
dismissed the claim. He held that the conduct itself was not
sufficient to enable a prosecution to proceed in the criminal
court.
The question for the Court of Appeal was, whether the trial
judge erred in law in deciding that the course of conduct described
by the appellant did not constitute harassment for the purposes of
the Act.
In order to consider whether the course of conduct described
constituted harassment, the trial judge scrutinised the 1997 Act,
noting that it afforded both a civil and criminal remedy. He
considered that the relevant and binding authorities appeared to
him expressly to exhort him as a first instance judge to bear that
in mind. In particular, the trial judge referred to the decisions
of the Court of Appeal and the House of Lords in Majrowski v
Guys and St Thomas NHS Trust [2005] EWCA Civ 251 and Conn
v Council and City of Sunderland [2007] EWCA Civ 1492. In
Conn, Lord Justice Buxton stated that it was crucial that
the conduct concerned "must be of an order that would sustain
criminal liability, and not merely civil liability on some other
register". Accordingly, on the basis of the evidence before
him the trial judge was of the view that, while the whole of the
experience was unpleasant and upsetting from Miss Veakins' point of
view, it could not be considered to constitute harassment in terms
of the 1997 Act.
In the leading judgment of the Court of Appeal, Lord Justice Kay
relied heavily upon the judgments of Baroness Hale and Lord
Nicholls in Majrowski. Baroness Hale said "a great
deal is left to the wisdom of the courts to draw sensible lines
between the ordinary banter and badinage of life and to genuinely
offensive and unacceptable behaviour". Lord Nicholls referred
to conduct that was "oppressive and unacceptable". This formulation
was adopted by Lord Justice Longmore in Alan v London Borough
of Southwark [2008] EWCA Civ 1478, and again was referred to
in the most recent authority, Ferguson v British Gas Trading
Limited [2009] EWCA Civ 46. The test to be applied was whether
the conduct complained of was "oppressive and unacceptable", as
opposed to merely unattractive, unreasonable or regrettable. This
was the primary test, albeit it was conceded that the court must
keep in mind that the conduct must be of an order which would
sustain criminal liability.
As such, Lord Justice Kay confirmed that, in his view, the trial
judge had displayed an erroneous approach. In order to establish
whether the conduct complained of was oppressive and unacceptable,
Lord Justice Kay required to reconsider the unchallenged witness
statement.
Lord Justice Kay indicated that the trial judge had undervalued
the evidence from the witness statement. The account of
victimisation, demoralisation and the reduction of a substantially
reasonable and usually robust woman to a state of clinical
depression was not simply an account of unattractive and
unreasonable conduct or the ordinary banter and badinage of life.
It self-evidently crossed the line into conduct which was
oppressive and unreasonable: indeed, it would be sufficient to
establish criminal liability.
As a consequence, the Court of Appeal allowed the appeal. Lord
Justice Kay noted that the 1997 Act would come to be used by
disgruntled employees in similar cases. He acknowledged that the
purpose of the Act was to deal directly with stalking and similar
type cases rather than disagreements in the workplace.
Nevertheless, he pointed out there was nothing in the language of
the Act which excluded workplace harassment, but did not expect
that many workplace cases would give rise to such liability. Mrs
Lavy's conduct as described by the appellant was, in his view,
extraordinary, oppressive and unacceptable. In Lord Justice Kay's
view, it was far more likely that in the great majority of cases
the remedy for high-handed or discriminatory misconduct by or on
behalf of an employer would be more fittingly dealt with by an
Employment Tribunal.
The case is interesting for its further consideration of the
definition of harassment and what the courts will have in mind when
deciding whether harassment has been proved. The effect on the acts
are paramount; the psychiatric evidence in this case was no doubt
persuasive in establishing that there had been a real psychological
effect as a result of the course of conduct complained of. The case
indicates that, where the evidence of a "victim" is undisputed and
appears oppressive and unacceptable, then there is a strong
possibility that the conduct complained of will be defined as
harassment for the purposes of the Act.
Contributed by Lynne Macfarlane