In Veakins v Kier Islington Ltd the Court of Appeal has given some guidance about the burden of proof in cases where an employee seeks damages from the employer by reason of harassment committed by a fellow employee. Watmores represented the defendant employer.

The Claimant was employed by the Defendant as an electrician, initially as a trainee, from September 2003 to September 2005. She went on sick leave for depression from September 2005 until June 2006 when she decided to terminate her employment. The problem period in her employment was between July and September 2005 when one Jackie L. became the Claimant’s supervisor. All the matters, which the Claimant alleged in her witness statement caused her depression, related to employment issues. She had an initial dispute over a wages problem which led to a public telling off by Mrs L. She felt that Mrs L. persistently picked on her, singling her out from her fellow employees for no reason at all. There were further disputes about timekeeping and about Mrs. L. requiring the Claimant for a time to sign an In and Out register every day. The Claimant complained that Mrs L. changed the existing practice about her being picked up on the way to a particular job by other workmen. There was also a complaint concerning Mrs. L. telling her on one occasion to “fuck off”, although the Claimant acknowledged that that word was not in itself unusual in her work environment. There was also an issue about Mrs L. ripping up the Claimant’s letter of complaint in front of her without reading it. There were complaints about office gossip and also about Mrs L. asking other employees questions about the Claimant’s private life to arm herself with useful material for a campaign of victimisation, as the Claimant saw it.

Section 1(1) of the Protection from Harassment Act 1997 provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. The prohibition is enforceable by the creation of a criminal offence (section 2) and a civil remedy (section 3). “Harassment” is not extensively defined by the Act but section 7(2) provides that it includes “alarming the person or causing the person distress”.

The case was heard in the first instance in the Brighton County Court before Recorder Grainger. He gave judgment for the Defendant on the grounds that Mrs L.’s actions were not of an order to sustain a criminal liability and therefore, failed the test set out in Conn v Council and City of Sunderland (2007 EWCA Civ 1492). However, the Court of Appeal concluded that Recorder Grainger failed to consider whether Mrs. L.’s conduct was “oppressive and unacceptable” and that he could not properly come to a conclusion concerning whether her actions could sustain a criminal liability without doing so. The Court of Appeal then decided that Mrs L.’s conduct was “oppressive and unacceptable” and went on to consider whether her actions were of such an order to sustain a criminal liability. They determined that they were. Their explanation was that the Claimant’s account of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust woman to a state of clinical depression was not simply an account of “unattractive” and “unreasonable” conduct or “the ordinary banter and badinage of life”.

Lord Justice Maurice Kay expressed the opinion that the circumstances of this case were “extraordinary” as he would not expect that many workplace cases would give rise to this type of liability. He considered that it is much more likely that in the majority of cases, the remedy for high-handed or discriminatory misconduct by or on behalf of an employer would “be more fittingly in the Employment Tribunal”. It is true that it is highly likely that if the Claimant had brought her claim in an Employment Tribunal, that she would have been successful and it is not known why she did not do so. However, this decision may well result in more litigation under the Protection from Harassment Act in respect of workplace stress claims, as there are certain advantages to claimants bringing claims under the Act. Firstly, they do not have to demonstrate foreseeability and secondly they do not have to show that they have suffered from a recognised medical condition as a result of the harassment. The law is the opposite in respect of workplace stress claims brought in negligence and for breach of statutory duty.

The decision will come as a surprise to many insurers, who may consider the Employment Tribunal to be the appropriate forum for such claims and not the County Court under this Act. The decision is significant for Employers Liability insurers and their insured, as their policies may provide cover for claims brought under the Act, but not in an Employment Tribunal.

Guy Alhadeff, December 2009

Further information about this case can be obtained from Guy Alhadeff.