MAJROWSKI V GUY’S AND ST THOMAS’ NHS TRUST  UKHL 34
The Defendant employed the Claimant as a clinical auditor co-ordinator. He claimed that his departmental manager bullied and intimidated him. She was rude and abusive to him in front of other staff, as well as being excessively critical of his time keeping and work. He made a formal complaint in of harassment against her on the 20th April 1998, which resulted in a finding that harassment had occurred. On the 7th June 1999, the Defendant was dismissed for reasons unconnected with the harassment.
Four years on, the Claimant commenced proceedings against the trust pursuant to section 3 of the Protection from Harassment Act 1997. That was the sole basis of his claim. His case was struck out at first instance as disclosing no reasonable cause of action. The Court of Appeal allowed the Claimant’s appeal and the Defendant appealed to the House of Lords. The issue for the court was whether an employer was vicariously liable for harassment committed by an employee in the course of his employment.
Lord Nicholls considered the principle of vicarious liability, as well as the policy considerations underpinning that principle. He pointed out that these policy considerations made it difficult to confine the principle of vicarious liability to common law wrongs.
A precondition of vicarious liability is that the wrong must be committed by an employee in the course of his employment. A wrong is committed in the course of employment only if the conduct is so closely connected with acts the employee is authorised to do that, for the purposes of the liability of the employer to third parties, the wrongful conduct is so closely connected with acts the employee is authorised to do that, the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment. His Lordship referred to Lister v Hesley Hall Ltd  1 AC 215 and Dubai Aluminium Co Ltd v Salaam  2 AC 366.
Lord Nicholls then considered the Protection from Harassment Act 1997. The purpose of the Act was to protect victims of harassment, whatever form that took. Section 1 states:-
“(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.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”
Section 2 creates a criminal offence. Section 3 affords victims a civil remedy in respect of breaches of section 1 and section 2, and states:-
“(1) An actual or apprehended breach of section 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.
- On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.”
Lord Nicholls said that the effect of section 3(1) was to render a breach of section 1 a wrong giving rise to the ordinary remedies the law provides for civil wrongs. Neither the terms nor the practical effect of this legislation indicated that Parliament intended to exclude the ordinary principle of vicarious liability. Parliament had spelt out some particular features of this new wrong, anxiety was a head of damages, and the limitation period was six years and so on.
The imposition of criminal liability did not point to any different conclusion.
There was no reason why an employer should have a special dispensation in respect of this newly created wrong and not be liable if an employee committed that wrong in the course of his employment.
The Defendant had placed reliance on the overlap which existed between the 1997 Act and the harassment provisions in the series of non-discrimination regulations introduced to give effect to European Directives 2000/43/EC, 2000/78/EC and 2002/73/EC. As a result in 2003 regulations were introduced to amend a number of Acts, including the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995. The Race Relations Act 1976 provided an “employer’s defence” briefly to the effect that an employer had a defence if he can prove he took such steps as were reasonably practicable to prevent the employee from doing the act or acts of harassment. No such defence applied under the Protection from Harassment Act 1997. Furthermore a victim of harassment could bypass the Race Relations Act 1976 and its stricter time limits by using the 1997 Act.
The Directives and the amending regulations came after the 1997 Act. The absence of the “employer’s defence” in the Protection from Harassment Act 1997 did not assist in the interpretation of that Act. However Lord Nicholls acknowledged that these amendments to the discrimination legislation had produced a discordant and unsatisfactory overlap with the 1997 Act.
There was a final point to be made, which was that Sections 8 to 11 of the 1997 Act made corresponding provision for Scotland. Section 10 inserted a new section into the Prescription and Limitation (Scotland) Act 1973, which envisaged that the employer of a person responsible for harassment could be the defender in an action for harassment. Parliament could not have intended a different result for England and Wales.
Lord Hope agreed with Lord Nicholls on the interpretation of the 1997 Act. He referred to the Scottish provisions (sections 8 to 11) and in particular section 10(1) which dealt with limitation of actions for harassment in Scotland. This inserted a new section 18A into the Prescription and Limitation (Scotland) Act 1973.
Section 6 of the 1997 Act inserted a new subsection into the Limitation Act 1980 (section 11(1A)). This stated that that particular section (section 11) was not to apply to the 1997 Act. That brought an action for harassment under the six year time limit.
Baroness Hale also agreed. She said that one of the points made by the Defendant’s counsel was that importing the doctrine of vicarious liability into the 1997 statute would open up the floodgates of litigation. That was an argument that might assist in the development of common law principles, but not statute. Parliament must be assumed to legislate in the knowledge of the general law, which includes the law of vicarious liability.
Lord Carswell and Lord Brown also agreed with the above conclusions.