Intention to harass

Stress claims are notoriously difficult to prove, a point reinforced just recently by the Court of Appeal in Banks v Ablex Ltd. But unlike the case of Majrowski, the Court decided that Mrs Banks could not rely on the Protection from Harassment Act 1997 to help her.

What were the basic facts?

Mrs Banks left her job at the end of 1998 suffering from depression. She claimed that this was caused by the conduct of another employee, Chris Briggs, who she said had sworn at her, shouted at her and assaulted her.

By failing to respond to her complaints, she alleged that her employer had breached the term of trust and confidence in her contract, and that her employer was vicariously liable in negligence for Mr Briggs' conduct.

She claimed that she had no choice but to resign as a result of that negligence.
She also claimed that her employer was vicariously liable for the "statutory tort of harassment" by Mr Briggs under the Act.

For their part, her employer said that they had tried to respond to her claims by offering to move Mr Briggs (who had received an oral warning for swearing at a colleague in early 1998), but that she had her own "independent" reasons for leaving.

What did the County Court decide?

The Judge rejected Mrs Banks' allegations of assault and said that there was no evidence that Mr Briggs' outbursts were targeted at her as opposed to anyone else.
As for the allegation of harassment, the Judge said that he was not convinced that Mr Briggs knew or ought to have known that that his outbursts would cause her to feel harassed. He did not think Mr Briggs had intended to harm her and that she was, in any event, "a woman of strong character, not easily upset, a person who gave as good as she got...".

The Judge then went on to deal with foreseeability, which she had to establish to win a claim of negligence. Again, he was not convinced, saying that he did not think the company could be held liable for acts committed by an individual employee "of which they had no knowledge or control either subjectively or objectively".

What did the Court of Appeal decide?

The court said that under the Act, Mrs Banks had to show that the conduct was intentional and that, by any objective standard, the harasser would know that it amounted to harassment.

Although the Act does not define harassment, the legislation makes clear that it is conduct targeted at an individual which is calculated to alarm that person or cause them distress, and which is oppressive and unreasonable (see box, below).

In this case, the court found that there was no evidence to suggest that Mrs Banks' employer knew or ought to have known that she was in any way vulnerable. Indeed, the evidence indicated quite the reverse.

Nor was there any evidence that the defendants ought to have foreseen that Mrs Briggs' mental health would suffer as a possible consequence of Mr Briggs' bad temper.

There was no reason to believe that Mr Briggs would not heed the warning given to him in March 1998, and even if her employers could have foreseen a further incident, there was no reason to believe that it would endanger her mental health.

SECTION 1 OF THE PROTECTION FROM HARASSMENT ACT 1997

(1) A person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.