July 2010: The Protection from Harassment Act 1997 was originally brought in to force to combat the likes of stalkers and similar pests.
However subsequent case law suggests that the Act may be invoked to protect employees against harassment by employers. For the employee, this may have several advantages:
1. The employee does not have to resign in order to bring a claim (as would be the case if bringing a constructive dismissal claim)
2. The employee can claim distress and anxiety caused by the harassment (which is not the case in unfair dismissal claims).
3. The harassment does not have to relate to the victim’s sex, race, disability, sexual orientation or religious belief, as would be the case if bringing a claim of unlawful discrimination.
4. A claim under the Act will be brought in the Civil Courts, for which there is a longer limitation period than in the Employment Tribunal
To claim under the act the treatment must:
(a) occur on at least two occasions;
(b) be targeted at the claimant;
(c) be calculated in an objective sense to cause alarm or distress; and
(d) be objectively judged to be oppressive and unreasonable
(e) give rise to criminal liability.
Intention is irrelevant. All that is required is that the conduct occurs in circumstances where a reasonable person would realise that harassment would be its effect. In 2006 in Majrowski v Guy’s & St Thomas’s NHS Trust the House of Lords held that employees can use the Protection from Harassment Act 1998 to claim damages from the employer if a colleague bullies or harasses them.
Guidance has also been given in the case of Banks v Ablex Ltd 2005 in which a woman who alleged she had been shouted and sworn at by a male colleague made an unsuccessful claim under the Protection from Harassment Act. In Banks, the Court of Appeal emphasized that to contravene the Act, there must be a course of intentional conduct which amounts to harassment. Misconduct on one occasion only is not sufficient. There must be a course of conduct extending over two or more occasions. Unfortunately for Ms Banks, she’d only been sworn and shouted at on one occasion!
In Veakins v Keir Islington Ltd 2009 the Court of Appeal held that when deciding whether the conduct complained of constitutes harassment, the primary focus is on whether the conduct is oppressive and unacceptable, although the Court must still consider whether it is sufficiently serious to amount to criminal liability (as per Majrowski). In this case Ms Veakins, told the Court that she was a usually robust woman who had been victimised and demoralised by her supervisor and became clinically depressed. The Court took the view that this conduct was indeed oppressive and unreasonable and was sufficient to establish criminal liability.