Majrowski v Guy’s and St Thomas’s NHS Trust, House of Lords, 12 July 2006
Subject: Vicarious Liability of Employers for Harassment Damages
Issue
Where an employee is guilty of harassment of a fellow employee in breach of the Protection from Harassment Act of 1997, is the employer vicariously liable for the acts of harassment and so liable to pay damages.
Summary
The employer is liable.
Practical Significance
This decision creates a new liability for employers, who will be liable to pay damages for, amongst other things, “anxiety” suffered by an employee who is harassed by another employee. “Harassment “ is not defined in the Act and any objectively unreasonable conduct may come under that head.
Legal Background
An employer can be vicariously liable for any harm caused by the act of an employee, provide that the act is closely associated with the employment and that it is fair and reasonable to impose the liability (Lister v Hesley Hall, 2001).
The Protection from Harassment Act of 1997 created an offence of harassment, but also allowed for a civil claim to be made by the victim against the perpetrator for damages for anxiety and financial loss.
The background to the Act was concern about the practice of “stalking.”
The Decision
It was not disputed that the claimant had suffered harassment from a fellow employee, who had been “rude, abusive….. and excessively critical”. The action for damages was brought against the Trust only, on the ground that it was vicariously liable for the acts of the guilty employee.
The Act provided for a civil claim for damages to be made against the perpetrator but did not say anything specific about vicarious liability. But, the Court reasoned, the theoretical background indicated that it should apply. The idea of vicarious liability was based on policy; economic activity carried a risk of harm to others and it was reasonable that those responsible for the activity should be liable for resulting harm. It followed that where a statute created a tort it is to be presumed that the employer will be vicariously liable, unless the statute specifically excludes it.
The Court rejected the argument that the Act should have no application in the workplace because it was concerned with “stalking” and was intended to deter the practice by imposing personal liability on the perpetrator only. There was nothing in the wording of the Act to support this limited application.
Brendan O'Keeffe
Swiss Re UK
