Vicarious Liability for Employee's Harassment of Co-Worker - with Daniel Barnett's Commentary

Employer's Vicarious Liability For Harassment
Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34
HL
12 July 2006
Daily Law Notes Summary
The Protection from Harassment Act 1997 did not, expressly or
impliedly, exclude an employer from vicarious liability for the
tort of harassment committed by his employees while acting in the
course of their employment. Therefore a claimant had a cause of
action under s 3 of the Act against his employer in respect of
alleged harassment by his departmental manager in breach of s 1.

Daniel Barnett's commentary:
Vicarious Liability: Protection from Harassment

Vicarious Liability: Protection from Harassment

Last week the House of Lords handed down its decision in Majrowski
v Guy's & St Thomas' NHS Trust (see bulletin 16/3/05 for the Court
of Appeal's decision).

The House of Lords upheld the Court of Appeal's decision, stating:

    * an employer's vicarious liability arises under statute
unless the statutory provision excludes such liability. In other
words, vicarious liability is not limited only to common-law
wrongs of employees, but extends to their breaches of statutory
duty

    * although the construction is finely balanced, parliament did
not intend the Protection from Harassment Act 1997 to be an
exception to that rule.

Thus employees (and ex-employees) can now bring claims against
employers for damages if they are subjected to a course of conduct
(meaning at least two incidents) amounting to harassment.

The advantages to an employee (and, concomitantly, disadvantages
to an employer of bringing a harassment claim against the employer
in the civil courts are:

    * deeper pockets - the damages award can probably be met,
unlike if the remedy exists only against the individual

    * more grounds on which to establish harassment - not just
sex, race, sexual orientation, age etc..

    * the statutory defence (i.e. that the employer took all
reasonable steps to avoid the harassment) is not available to
employers. Lord Nicholls described this as "a discordant and
unsatisfactory overlap" between the different pieces of
legislation (para. 39)

    * a six year, rather than a three or six month (depending on
whether statutory grievance procedure applies) time limit applies

    * unlike in the employment tribunals, costs are normally
recoverable

    * subject to means (and finding a lawyer who will take on the
case!), legal aid is available


House of Lords Decision
Majrowski v Guy's & St Thomas' NHS Trust