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Vicarious Liability: Protection from Harassment

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Last week the House of Lords handed down its decision in Majrowski v Guy's & St Thomas' NHS Trust (see bulletin 16/3/05 for the Court of Appeal's decision).

The House of Lords upheld the Court of Appeal's decision, stating:

  • an employer's vicarious liability arises under statute unless the statutory provision excludes such liability. In other words, vicarious liability is not limited only to common-law wrongs of employees, but extends to their breaches of statutory duty
  • although the construction is finely balanced, parliament did not intend the Protection from Harassment Act 1997 to be an exception to that rule.

Thus employees (and ex-employees) can now bring claims against employers for damages if they are subjected to a course of conduct (meaning at least two incidents) amounting to harassment.

The advantages to an employee (and, concomitantly, disadvantages to an employer of bringing a harassment claim against the employer in the civil courts are:

  • deeper pockets - the damages award can probably be met, unlike if the remedy exists only against the individual
  • more grounds on which to establish harassment - not just sex, race, sexual orientation, age etc..
  • the statutory defence (i.e. that the employer took all reasonable steps to avoid the harassment) is not available to employers. Lord Nicholls described this as "a discordant and unsatisfactory overlap" between the different pieces of legislation (para. 39)
  • a six year, rather than a three or six month (depending on whether statutory grievance procedure applies) time limit applies
  • unlike in the employment tribunals, costs are normally recoverable
  • subject to means (and finding a lawyer who will take on the case!), legal aid is available

Majrowski v Guy's & St Thomas' NHS Trust