For a claim of workplace negligence to be successful, the claimant has to be able to show, among other things, that their employer could have foreseen their injury.
Claimants also have to make their claim within the limitation period - usually three years.
So what are the alternatives for claimants who cannot rely on negligence, for whatever reason? In Majrowski v Guy's & St Thomas's NHS Trust the Court of Appeal has now said that employers can be liable for a breach of a statutory duty as well as breach of a common law (or judge-made) duty.
What happened in this case?
Mr Majrowski, a clinical audit coordinator, alleged that he was harassed by his departmental manager, Mrs Sandra Freeman. He said she was excessively critical of him; that she refused to talk to him; that she was rude and abusive to him in front of other staff; and that she imposed unrealistic targets for his performance.
Rather than making a claim for negligence (because of evidential and limitation problems), however, Mr Majroswki claimed that the hospital was vicariously liable for a breach of a statutory duty imposed on her under the Protection from Harassment Act 1997.
What did the County Court decide?
The county court Judge decided that the hospital Trust could not be held liable under the Act for Mrs Freeman's behaviour. He said that the Act was to penalise the conduct of specific and identifiable individuals, and could only "lie against" those individuals, not groups or institutions. That meant that Mr Majrowski could only bring an action against his manager, and not the Trust.
What did the Court of Appeal decide?
The Court of Appeal had to decide whether, in general terms, an employer can be held liable for a breach of a statutory duty (as opposed to common or judge-made law) that is imposed on his or her employee, but not the employer.
It made a number of general observations:
1. That vicarious liability is legal responsibility imposed on an employer, "although he is himself free from blame, for a tort [civil wrong] committed by his employee in the course of his employment."
2. That it covers liability for an employee's unauthorised act (or unauthorised way of doing something) in the course of his or her employment.
3. That the wrongful act has to be very closely connected with what the employee is authorised to do.
The Court of Appeal relied heavily on the decisions in Lister & Ors v Hesley Hall Ltd (2002, AC 215) and Dubai Aluminium v Salaam & Ors (2003, 2 AC 407) and said that the essential test should be "whether, looking at the matter in the round, it is just and reasonable to hold the employers vicariously liable". However, there must be a strong connection between what the employee has done and the employment in question.
On the basis of that new, broader test, the Court concluded that "an employer may be vicariously liable for a breach of statutory duty imposed on his employee, though not on him".
It also decided that there was nothing in the Act that prevented an employer from being vicariously liable for acts by one of its employees, again as long as there was a close connection between the act and the employment.
Comment
Although this case may provide claimants with another potential avenue to go down in bullying/harassment claims, it will not help in the majority of stress cases. These still have to get over the hurdles of foreseeability laid down by the Court of Appeal in Sutherland v Hatton (LELR 68), and reaffirmed by the House of Lords in Barber v Somerset County Council (LELR 90).
In any event, the Banks case shows just how difficult it is in practice to prove allegations under the Protection from Harassment Act.
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