A company’s liability for harassment or bullying by one of its managers was brought to attention by a recent case. Tony Bingham sums up the facts …
I remember vividly, as a young man, that one of my bosses was a very unpleasant fellow – unpleasant to me. Mind you, I also remember another one of my bosses was a very pleasant lady – pleasant to me. I don’t think he liked her being pleasant to me. Tricky stuff. Not unusual, though, for folks to become at odds with each other in a firm.
In a recent case Judy Veakins said her boss Jackie Lavy did not like her. It got so bad that Veakins sued the firm, Kier Islington, under what’s known as the “stalker” act! No, no, her boss wasn’t stalking her. Rather, she would give Veakins an embarrassing telling off in front of others. Veakins was being picked on. On one occasion the boss told her to eff off. She made life hell, it was said. Depression set in … Veakins went on sick leave”. She packed the job in, and consulted a solicitor. A court action was begun under the Protection from Harassment Act 1997. The case went all the way to the Court of Appeal. She won.
Now then, the act was primarily a response to the problem of stalking. It is a criminal offence to cause anxiety and upset by harassment. But the words in the act are wide enough to create a right to claim damages against an employer when a fellow employee goes a step too far. How far? Try this: harassment means engaging in “unwanted conduct, which has the purpose or effect of violating another’s personal dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person”. On top of that, it is the firm that is liable for the wrongs of its employees.
Look how wide the words are in the act:
“A person must not pursue a course of conduct that amounts to harassment of another and which they know or ought to know amounts to harassment of the other.” This is wide enough to deal with stalkers, racial abusers, disruptive neighbours and bullying at work. A claim, if successful, can give rise to an award of damages for anxiety caused by harassment and any resulting financial loss. And since the vehicle for, say, bullying is the firm, it is up to the firm to watch out for such conduct and to immediately put a stop to it.
In a different case, a boss was shown to be rude and abusive to her colleague in front of other staff and excessively critical of his time-keeping and quality of work. She also allegedly imposed unrealistic performance targets, threatened disciplinary action and isolated him by refusing to talk to him. The first judge threw the complaint out, taking the view that the protection from harassment was not designed to create another level of liability in employment law. However, the five Law Lords sitting on the case agreed that the act covered bullying in the workplace.
In Veakins’ case, the first judge also threw out the complaint. He sympathised with her, adding that he did not doubt “the whole experience was unpleasant and upsetting”. He accepted the facts, but thought the “regrettable episodes” had to come near to criminal behaviour for the act to apply.
Not correct, said the Court of Appeal. True, the act creates a criminal offence out of bullying, but it also allows a civil claim. The court, however, has to draw a line between the “ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour”. Once the latter is established, damages will be awarded.
So, we have to put up with a certain amount of annoyance in day-to-day dealings with other people – things have got to be fairly severe before the law, civil or criminal, will intervene. You, I and the courts can pick up oppressive and unacceptable conduct that is grave enough to qualify as harassment at work – or anywhere else, for that matter.
For Veakins, all had gone well at the firm for the first two years. Her work had been satisfactory and uneventful. Within two months of her boss taking over, the atmosphere had caused a psychiatrist to diagnose depression. In those two months there had been indications of callousness: “She was smiling all the time, obviously enjoying the situation; the result was demoralisation and victimisation”. The end result is that the act comes to the rescue by awarding compensation to the victim … against the employer.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple