Bullying/Harrassment and Stress Claims
NewsFollowing Hatton v Sutherland a line of recent cases has placed significant obstacles in the way of Claimants bringing successful “stress” claims. In summary, Hatton established a high threshold of foreseeability; unless there was a real risk of breakdown which the Claimant’s Employers ought reasonably to have foreseen and ought properly to have averted, there would be no liability.
Subsequent to the Hatton decision the Protection from Harassment Act 1997 (Protection from Harassment (NI) Order 1997) has come into effect and the provisions of the Northern Irish 1997 Order mirror those of the 1997 Act in England. The purpose of the statute is to protect victims of harassment, whatever form the harassment takes, or wherever it occurs and whatever its motivation. It was primarily brought into being to provide protection against stalkers; its effect is to provide protection against bullying at work. Harassment has been defined in the case of Thomas v News Group Newspapers (2001). Conduct will amount to harassment if the following can be shown:
- It has occurred on at least two occasions;
- It is targeted at the Claimant;
- It is calculated in an objective sense to cause distress; and
- It can objectively be judged to be oppressive and unreasonable.
Subsequent to the introduction of this legislation it is repeatedly being pleaded in occupational stress claims in an attempt to hold Employers vicariously liable on a strict basis for the action of their Employees. Crucially, the legislation provides that a victim can claim damages not simply for loss or injury sustained but also damages for mere anxiety caused by the conduct. The limitation period for claims brought under the legislation is six years, as opposed to a three year period for common law claims.
In the case of Majrowski v. Guy’s and St. Thomas’s NHT Trust (2006) the House of Lords confirmed that the usual principles of vicarious liability should apply in harassment cases. The test case for vicarious liability generally is whether there is sufficiently close connection between the action of the Employee and his job. The Act has therefore created a significant new cause of action and Insurers dealing with these types of claims will need to be fully familiar with the Act and how it has been interpreted by the House of Lords in Majrowski. In particular, if allegations of bullying are made, Insurers or their Claims Investigators should try to come to an early view on whether the behavior could fit within the definition set out in the case of Thomas.
As a practical point, Insurers should be alert to the fact that compulsory insurance is only required if the Claimant has suffered some bodily injury or disease. It may be necessary for careful consideration whether EL Policies in fact apply if, as a result of harassment, the Claimant has merely suffered anxiety that does not constitute a bodily injury or disease.
The Court of Appeal decision in the case of Conn v Sutherland City Council (2007) deals with the issue of Employee’s conduct and whether this constitutes harassment as defined by the Act. In their Judgment the Court of Appeal expressed very strong views about the use of the Act and made it clear that they disagreed with the view that trivial incidents are sufficiently severe to give rise to the criminal penalties or civil liability applicable under the Act. Contrary to the view of some practitioners however Conn may not be on unqualified success for Defendants/Employers. Gage L.J. pointed out that the circumstances may affect the quality of the act in question. He indicated that the boundary between unattractive and even unreasonable conduct, and conduct which was oppressive and unacceptable, may depend on the context in which it occurs. Following Conn there may be scope for those employed in the more genteel atmosphere of the office to assert a case for behavior that might be acceptable in other working environments.
Until, therefore, there are more decisions available on the subject it is going to be difficult to determine where the dividing line is going to fall between what is, and what is not, harassment and the decisions issued by the Court going forward will be of particular importance to EL Insurers operating in this area.
VMCL