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Vicarious Liability

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The Court of Appeal has handed down its judgment in Majrowski v Guy's & St Thomas's NHS Trust, an important case dealing with principles of vicarious liability both generally (for breach of any statutory duty) and in connection with breaches of the Protection from Harassment Act 1997.

General Principle
The Court of Appeal held, unanimously, that employers can be vicariously liable for breaches of statutory duty as well as breaches of common law obligations (subject to the wording of any given statute).

Surprisingly, this point had not been determined in any previous case in England (although dicta in cases such as Lister v Hesley Hall had suggested as such, and there was also a Scottish authority to this effect).

Protection from Harassment Act 1997
The Court of Appeal went on to hold, this time by a majority, that there was nothing in the wording or policy of the Protection from Harassment Act 1997 that prevented an employer being vicariously liable for harassment by its employees, as long as there was a sufficiently close connection with employment.

This decision means that an employee can sue a (solvent) employer for damages for harassment by a co-worker. 'Harassment' is not clearly defined in the Act, but probably includes workplace bullying or a series of unreasonable instructions.

Thus the employee has a cause of action against the employer which s/he might not previously have had - particularly if the employee has not suffered personal injury, or has suffered personal injury but cannot establish the strict foreseeability test laid down in Sutherland v Hatton and Barber v Somerset County Council, as Claimants are expressly permitted to recover damages for anxiety caused by the harassment under the 1997 Act.

Majrowski v Guy's & St Thomas's NHS Trust