It’s criminal

Veakins v Kier Islington Ltd

Although the 1997 Protection from Harassment Act (PHA) was not drafted with the workplace in mind, the Court of Appeal has said in Veakins v Kier Islington Ltd that there is nothing in it to say it could not be used to tackle workplace harassment. The test is whether the conduct was “oppressive and unacceptable” and would sustain criminal liability.

Basic facts

Ms Veakins was employed by Kier Islington initially as a trainee electrician from September 2003 until July 2005 with no problems. She then went on sick leave with depression in September that year until June 2006 when she terminated her employment.

She complained that the problem started when a new supervisor took over. 
The two women initially had a dispute about wages which led to the supervisor giving Ms Veakins an embarrassing “telling-off” in front of other colleagues. There were further disputes about time-keeping and a complaint that the supervisor ripped up a letter of complaint, in front of Ms Veakins, that she had written.

Ms Veakins complained that the supervisor made life “hell” for her and that, as her employer, Kier Islington was vicariously liable for her behaviour under section 1(1) of the PHA. Unusually, her evidence was not substantially challenged.

Relevant law

Section 1(1) of the PHA states that a person must not pursue “a course of conduct which amounts to harassment” of someone else and which “he knows or ought to know amounts to harassment of the other”.

"Harassment" is not exhaustively defined but section 7(2) states that it includes "alarming the person or causing the person distress"

County Court decision

Relying on the cases of Majrowski v Guy's and St Thomas' NHS Trust and Conn v Council and City of Sunderland, the county court judge ruled against Ms Veakins on the basis “that the conduct concerned must be of an order that would sustain criminal liability”. In this case, the judge said, it “plainly” was not.

Court of Appeal decision

The Court of Appeal, however, disagreed. It said that, since Majrowski, the primary focus for judges, when deciding whether the harassment satisfies the definition in the Act, is whether the conduct is “oppressive and unacceptable” and would sustain criminal liability.

In this case, it said that the substantially unchallenged account given by Ms Veakins of victimisation and demoralisation had reduced a “usually robust woman to a state of clinical depression”. That, said the court was not just unreasonable or part of "the ordinary banter and badinage of life". Instead it had crossed the line into conduct which was "oppressive and unreasonable"

It noted that since the case of Hatton v Sutherland it was more difficult for employees to bring successful negligence claims based on stress at work, as a result of which more employees were turning to the harassment legislation for redress.

Although it was unlikely that Parliament had the workplace in mind when it drafted the legislation, the Court stated there was nothing in it to say it could not be used to tackle workplace harassment. Having said that, however, it implied that in most cases, employees would have to seek redress in the employment tribunal.

It also cautioned that “it should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be "oppressive and unacceptable" but I have done so in circumstances where I have also described it as "extraordinary". I do not expect that many workplace cases will give rise to this liability”.