Bullying in the workplace has again made it to the headlines. The Helen Green v Deutsche Bank case filled newspaper columns last month splashing Helen Green’s £800,000 damages award all over the front pages.
Taken in conjunction with a recent House of Lords decision, the case opens the door to a new form of damages claim for employees complaining about bullying and harassment at work.
Helen Green sued Deutsche Bank in the High Court for personal injury and consequential loss and damages, alleging that the psychiatric injury she had suffered during her employment was the result of harassment and bullying by her fellow employees, for whom Deutsche Bank was vicariously liable.
Helen Green said that since she commenced employment in October 1997 she was bullied and harassed by her group. She said that her colleagues ignored her, laughed at her, made raspberry noises with each step she took and told her “you stink”.
In November 2000 she was admitted to hospital where she was diagnosed as suffering from a major depressive disorder. In March 2001 she returned to work, initially on a part-time basis. In October 2001 she suffered a relapse of her psychiatric illness, and at the end of the month stopped work. She did not return to work and her employment was terminated.
Helen Green’s main claim was for personal injury – that is for breach of Deutsche Bank’s duty of care to her. The High Court said that the behaviour was “a deliberate and concerted campaign of bullying within the ordinary meaning of that term”, and the Bank’s management was “weak and ineffectual”.
In assessing Deutsche Bank’s duty of care the Court reiterated the principles in the leading Court of Appeal case of Sutherland v Hatton (2001) EWCA CIV 76. The test in that case was whether psychiatric injury or illness was reasonably foreseeable. The Court of Appeal in that case held that “foreseeability depends of what the employer knows (or ought reasonably to know) about the individual employee…. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability”. In many cases this may be a difficult hurdle for employees to overcome but in this instance, on the facts, it was held that this test was met. Clearly where an employee has been off work due to psychiatric illness, and then returns, an employer should be on notice of a particular problem or vulnerability.
Protection from Harassment Act 1997
Helen Green also claimed that Deutsche Bank was vicariously liable in damages under the Protection from Harassment Act 1997 (“the Act”). The High Court cited and followed the July 2006 House of Lords decision in Majrowski v Guys and St Thomas’s NHS Trust that an employer can be vicariously liable under the Act for harassment by an employee.
This is a new and important point for employers. The Act provides a civil and criminal remedy for harassment. Prior to Majrowski it was not clear that an employee could claim under the Act against his employer for harassment suffered at work (as opposed to only against the individuals guilty of the harassment). The Act includes a remedy of “damages for any anxiety caused by the harassment and any financial loss resulting from the harassment”. Liability for these damages exists regardless of any breach of duty by the employer – therefore there is no need for the employee to prove negligence. Nor does the employee need to prove any actual psychiatric or physical injury. In the Helen Green case the Judge held that he did not propose to make a separate award under the Act under this head, as the anxiety caused by the harassment was a factor that he took into account in the assessment of general damages in the personal injury claim. Therefore the financial loss resulting from the harassment was subsumed in the claim for consequential loss and damage. However it remains to be seen what the awards for claims of anxiety caused by harassment under the Act will be. In many cases it is thought that they will be in line with injury to feelings awards in discrimination claims, however potentially they could include significant future losses.
Helen Green was awarded £800,000 constituting loss of future earnings including pension and a sum of £35,000 in relation to psychiatric injury.
The Helen Green case shows once again that not only do bullying cases make press headlines, but bullying claims can lead to substantial damages awards for employees where their future loss of earnings have been severely affected by the bullying.
Putting the principles in Majrowski into practice it also shows that there is a new civil remedy for employees in relation to harassment claims. Whereas prior to Majrowski, apart from launching a personal injury claim, an employee would have had to have based his harassment and bullying claim on grounds of discrimination or would have been limited to a claim of constructive dismissal (where damages are limited), employees now have a third claim available under the Act. As set out above, as there will be no need to prove breach of duty by the employer or actual psychiatric or physical injury, these claims will probably be systematically added to claim forms. The only pre-condition for the vicarious liability to exist is that the employee guilty of the harassment must have been acting in the course of his employment.
If nothing else the lesson from the Helen Green is that it is imperative for employers to take bullying seriously and use strong management to stamp it out. Ensure your harassment policies encompass bullying and train all your managers and employees about the effects and consequences it may have.