星空传媒

The Court of Appeal鈥檚 recent decision in Majrowski v Guys鈥� and St Thomas鈥� NHS Trust (2005) has given employees a new, independent claim of harassment against their employers.

Employers can now be held responsible if one employee harasses another, causing him anxiety or financial loss, even if the employer has no idea the harassment is going on.

The decision has potentially huge ramifications for the construction industry, which is highly subcontracted, as now a bricklayer or steel worker could claim harassment against a site manager鈥檚 employer, even though they鈥檙e from different companies. The subcontractor will argue that his work brought him in contact with the site manager, so it鈥檚 only fair that the site manager鈥檚 employer be liable.

The facts of the case were that Majrowski said his manager regularly intimidated, harassed and bullied him by setting unreasonable targets and being excessively critical of him, refusing to talk to him and undermining him in front of other staff. Rather than resign and claim constructive dismissal, he continued working for the trust, bringing a claim under the Protection from Harassment Act 1997.

This act was originally introduced to prevent stalking. It states that a person must not 鈥減ursue a course of conduct which he knows or ought to know amounts to harassment of another鈥�. A course of conduct means behaviour that happens more than once and that includes speech.

Somewhat ominously, the act does not define 鈥渉arassment鈥�, and a successful claim can have serious implications such as an injunction or an award for damages based on the anxiety and financial loss suffered.

Many were surprised when the court decided that the Harassment Act was relevant to employment relationships and that Majrowski had a claim in light of fairness and justice.

It made no difference that the conduct in question wasn鈥檛 part of the manager鈥檚 job. In other words, Majrowski鈥檚 manager-from-hell wasn鈥檛 required to behave in the way she did, she did it off her own bat.

Liability can arise in the following circumstances:

where one employee harasses another during employment;

On the bright side, there is unlikely to be a deluge of claims under the Harrassment Act. The court made it clear that only serious and deserving cases will be successful and an employee must prove: a close connection to the employment; more than a single act took place, leading to a 鈥渃ourse of conduct鈥�; and that the 鈥渉arassment鈥� complained of can be objectively recognisable as intending to cause alarm or distress.

According to a survey by the Chartered Management Institute bullying is widespread within the industry and a study by the Institute of Employment Studies stated that 11,000 construction workers are off sick at any time due to a work-related illness. Employers within the industry would therefore be advised to be on guard for any potential claims under the act and to monitor management practices.