Briefing Note - Employer's Liability
for Conduct of Employees - Harassment

The Court of Appeal has handed down its judgment in the important case of Majrowski v Guy’s & St Thomas’s NHS Trust, which dealt with vicarious liability for breach of any statutory duty and, specifically, with regard to breaches of the Protection from Harassment Act 199.

Mr Majrowski alleged that he was bullied, harassed and intimidated by his manager and brought a claim for damages against his employer on the basis that it was vicariously liable to him, under section 3 of the Protection from Harassment Act, for the actions of its employee.

The Court of Appeal unanimously held that employers can be vicariously liable for breaches of statutory duty as well as breaches of common law obligations, subject to the wording of the Act in question. In a majority decision the Court judged that there is nothing in the Protection from Harassment Act to prevent an employer being held vicariously liable for harassment by one employee of another, in the course of his or her employment, provided a sufficiently clear link can be established between the work and the harassment.

To constitute harassment, conduct has to be calculated to cause distress and be oppressive and unreasonable. Also, the perpetrator must know, or ought to know, that the conduct amounts to harassment and it must be conduct which a reasonable person would judge to be harassment.

The Court directed that the case should proceed to trial to determine whether, on the facts, Mr Majrowski’s manager had indeed harassed him within the meaning of the Protection from Harassment Act.

Under the Act, it is not necessary for the victim of harassment to prove that they have suffered a physical or psychiatric injury. The victim only has to demonstrate that he or she has suffered anxiety and distress.

Employers are advised to have an anti-harassment policy in place and to take positive action to eliminate employee behaviour that could cause distress and anxiety to others in the workplace.