I am the HR Manager of a small IT company. I was shocked to receive a letter before action from one of our customers who is alleging that she has been bullied, intimidated and harassed by one of our employees, who is a trouble-shooter on the IT Helpdesk. She is claiming that she has suffered severe anxiety as a result of this harassment. In addition to this open letter she has also sent us a ‘without prejudice’ letter offering to settle her potential claims against our Company for a large sum of money, which we are reluctant to pay.
Is it correct that we can be held vicariously liable for acts of alleged harassment carried out by our employees against third parties, such as customers? If so, what possible defence would we be able to mount against such a claim, if the customer’s allegations are substantiated?
Harassed about harassment
Your first line of investigation should be whether the alleged harassment is based on any unlawful discriminatory grounds, such as sex, race, disability, religion or belief, or sexual orientation. If it is, then the customer’s claim would be brought as a discrimination claim under the relevant employment legislation, for example the Sex Discrimination Act.
If the alleged harassment is not linked to any unlawful act of discrimination, then it may now be possible, following the recent landmark Court of Appeal decision in the case of Majrowski v Guy’s & St Thomas’ NHS Trust, for an employee or a third party to bring a stand alone claim for harassment under the Protection from Harassment Act, for which an employer can be held vicariously liable for the act of its employees. This is the first time that the provisions of the Protection from Harassment Act have been interpreted widely so that they can now extend to the employment arena. Civilly, harassment has typically been defined in the past to include acts such as stalking. The Act provides for criminal, as well as civil liability.
The relevant provisions of the Protection from Harassment Act provide that ‘a person must not pursue a course of conduct which amounts to harassment of another; and which he knows or ought to know amounts to harassment of the other.’ (Section 1). Alarming a person or causing him/her distress constitutes harassment. A ‘course of conduct’ must involve conduct on at least 2 occasions and ‘conduct’ includes speech.
The test of whether the harasser ought to have known that his conduct amounted to harassment is whether a reasonable person in possession of the same information would have concluded that the conduct constituted harassment.
As well as criminal liability, the Act also provides for a civil remedy for damages for anxiety falling short of injury to health. It will be interesting to see whether, in time, the amount of awards made for anxiety are similar to the level of awards made for injury to feelings in discrimination cases.
The limitation period for bringing claims under the Act is 6 years, as opposed to 3 months in respect of harassment claims on unlawful discriminatory grounds. Employees who are out of time to bring a claim under the relevant discrimination legislation may now to try to bring a claim under the Protection from Harassment Act. We may in time see a growth in speculative and cynical claims brought under the Protection from Harassment Act, although such claims are unlikely to be upheld by the Courts.
Some arguments that are open to you to raise in your defence include the following:
- Has there been a ‘course of conduct’ amounting to harassment? i.e. was there more than a single act of harassment perpetrated against your customer? If there was not, there could not have been a ‘course of conduct’ and you cannot be held vicariously liable for harassment.
- Would a ‘reasonable person’ witnessing the incident involving your customer have deemed it objectively likely to alarm or cause the customer distress. If not, your customer’s claim is unlikely to succeed. This is very different to harassment claims brought under discrimination legislation, as a subjective test applies in such cases.
Practical Steps For Minimising Future Liability
In order to minimise, as far as is reasonably practicable, your potential liability and future exposure as an employer, you should review your anti-harassment and anti-discrimination policies and procedures. You should ensure that all line managers and members of staff receive regular training about bullying and harassment and are fully aware that it is unacceptable to bully or harass fellow employees or any third parties, whether they be clients, customers or suppliers, with whom they come into contact in connection with their employment, on any grounds. Your training sessions should make it clear that harassment is now a stand alone claim and it does not have to be linked to any unlawful discriminatory act, for example, on the grounds of race, sex, disability, sexual orientation or religion or belief.
You may wish to consider including a provision in your terms and conditions of engagement, (which your customers should sign and return to you), under which they agree to notify you immediately of any incidents of harassment. As soon as you become aware of an incident of harassment, you can then take steps to prevent it from re-occurring and therefore one isolated incident would not amount to a ‘course of conduct’ constituting harassment. Obviously, you cannot compel your customers and clients to report incidents of harassment, as there is no sanction which you can apply to them if they fail to do so. However your counter-argument in such a situation would be that it is not just and reasonable for you to held vicariously liable for acts of which you were unaware and over which you had no control.