Court rules employer liable for sectarian harassment of employee19 July 2012
The aircraft fitter, who had worked for Shorts for over 20 years, received a series of intimidating, sectarian and abusive text messages over several months
Short Brothers PLC has been ordered to pay compensation to an employee who was subjected to a terrifying campaign of sectarian harassment and intimidation by colleagues.
In a significant judgment, handed down by the Northern Ireland County Court, Shorts were found to be vicariously liable for the harassment of Louis McGettigan.
The decision in McGettigan v Short Brothers PLC could pave the way for similar claims by workers harassed or subjected to racial or other discrimination by colleagues, even if the perpetrator is not identified. It sends a clear message to employers about their duty to implement policies and procedures intended to protect members of staff from bullying and harassment.
The aircraft fitter, who had worked for Shorts for over 20 years, received a series of intimidating, sectarian and abusive text messages over several months. The texts were clearly oppressive and unreasonable and capable of giving rise to criminal proceedings against the offender(s), thus amounting to harassment as defined under the Protection from Harassment (NI) Order 1997.
He reported the first text messages to the human resources department, who sent him to see the company’s head of security. Only at Mr McGettigan’s request did the head of security report the texts to the Harbour Police.
No aspect of Shorts’ bullying policies were implemented by HR and no warnings were issued to staff about the disciplinary consequences of sending intimidating texts to colleagues.
The employers also advised by letter that “the Company was not involved in the investigation and had no information to give to you.”
The Judge observed that “the letter is singularly unsupportive of the Plaintiff as an employee of twenty years standing. The tone of the correspondence can only have made him feel isolated and expendable.”
He was diagnosed with post traumatic anxiety which, according to his psychiatrist, was “perpetuated and exacerbated by his perception of the failure of his employer to take action to investigate, identify and abolish this harassment.” Although he did return to his job, he was then moved to another department for reasons other than the text messages.
In finding in favour of the victim and awarding him compensation, the Judge found Shorts to have been vicariously liable even though it was never established from exactly whom within the Company the texts were sent.
Shorts asked the court not to make the “leap of faith” that would enable the decision in the case of Majorwski & Conn v Sutherland County Council to apply. That decision established that an employer can be held vicariously liable for the harassment committed by one employee of theirs on another.
However, the court carefully considered the evidence and concluded that the text messages did emanate from an employee and applying the authority of the line of cases on this topic the Judge concluded:
“The reality of this shop floor is that, with full knowledge that a long serving employee of good standing and proven integrity reported chillingly frightening sectarian texts to various managers, the employer did nothing beyond providing a room for police interviews. It is the conclusion of the Court that the harassment in the form of text messages emanated from an employee and was so closely connected with the nature and circumstances of the Plaintiff’s employment (and was reasonably incidental to it) that it is fair and just to find this employer liable in the absence of any valid defence.”
Mr McGettigan pursued his claim against Shorts with the support of his trade union, Unite and union lawyers Thompsons NI.
He said: “I was a loyal and long-standing employee who had kept my head down and got on with my work. I did absolutely nothing wrong. And yet, under cross examination, the company’s head of security admitted that rather than discussing my safety, the conversations he had about me concerned my attitude to the company. Shorts let me go through nearly a year of hell. In all that time the HR department never contacted me to discuss what was happening. No one wanted to know. I am extremely grateful to Unite and Thompsons NI for understanding what I had endured and giving me the support that my employer failed to provide.”