Majrowski -v- Guy’s & St Thomas’ NHS Trust
For a claim of workplace negligence to be successful, claimants have to be able to show, among other things, that their employer could have foreseen their injury. And they usually have to make their claim within three years.
But what about claimants who, for whatever reason, cannot bring a claim of common law negligence?
In Majrowski -v- Guy’s & St Thomas’ NHS Trust the House of Lords said that employees can also bring claims against their employers for a breach of a statutory duty, as set out in the Protection from Harassment Act 1997 (PHA).
What happened in this case?
Mr Majrowski, a clinical audit coordinator, alleged that his departmental manager had harassed him. 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 set 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 breach of a statutory duty imposed on his manager under the PHA.
What did the lower courts decide?
The county court Judge decided that the trust could not be held vicariously liable under the Act for Mrs Freeman's behaviour.
He said that the purpose of the Act was only to penalise the conduct of specific and identifiable individuals, and Mr Majrowski could only therefore bring an action against his manager, and not the trust.
The Court of Appeal disagreed (see LELR 100). It 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 had 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”.
What did the House of Lords decide?
Their Lordships agreed with the Court of Appeal. They said that the principle of vicarious liability applied to situations where an employee committed a breach of a statutory obligation while acting in the course of their employment, “unless the statute expressly or impliedly indicates otherwise.”
So did this one? To answer that question, their Lordships looked to Scotland and the way in which the Prescription and Limitation (Scotland) Act 1973 had been amended when the Protection from Harassment Act was introduced in England. This named the employer as a person who could be responsible for the alleged harassment.
They concluded that, as Parliament could not have intended that situation only to apply to Scotland, the change in Scottish law was the most “direct and compelling indication of the intention of Parliament that there should be vicarious liability in a case such as the present.”
Comment
Some commentators have suggested that Majorswki will open the floodgates for this kind of litigation. Although cases under the PHA are not straightforward, the advantages are that:
• unlike discrimination legislation, workers do not need to show that the harassment was on one of the prohibited grounds of discrimination
• the statutory defence under discrimination legislation that the employer took all reasonable practicable steps to prevent the discrimination, is not available under the PHA
• there is a six-year time limit (three years in Scotland) to bring claims
• claimants do not have to show that the harm was foreseeable or that they suffered a recognisable injury as long as they can show the kind of distress suffered, unlike stress claims brought as negligence actions.