Majrowski v Guy's and St Thomas's NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice May,Lord Justice Scott Baker |
| Judgment Date | 16 March 2005 |
| Neutral Citation | [2005] EWCA Civ 251 |
| Docket Number | Case No: B2/2004/0631 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2005 |
[2005] EWCA Civ 251
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COLLINS CBE
Ph300744
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld
Lord Justice May and
Lord Justice Scott Baker
Case No: B2/2004/0631
Mr Brian Langstaff QC and Mr William Latimer-Sayer (instructed by Reynolds William) for the Appellant
Mr David Platt (instructed by Berrymans Lace Mawer) for the Respondent
Introduction
The appeal raises a broad and a narrow issue, neither of which has so far been authoritatively determined. The broad issue, which may or may not provide the answer to the narrow one, is whether, as Mr William Majrowski, the appellant, contends, an employer may be vicariously liable for a breach of statutory duty imposed only on his employee. The narrow issue is whether, as Mr Majrowski also contends, an employer may be civilly vicariously liable under section 3 of the Protection from Harassment Act 1997 ("the 1997 Act") for harassment in breach of section 1 of the Act committed by one of its employees in the course of his or her employment.
These issues come before the Court by way of Mr Majrowski's appeal from an order of His Honour Judge Collins CBE in the Central London County Court on 24 th February 2004, striking out his statement of claim for damages against the respondent, his employer, Guy's and St Thomas's NHS Trust ("the Trust"), under section 3 of the Act, pursuant to CPR Part 3.4(2) as disclosing no reasonable grounds for bringing the claim, and entering judgment for the Trust. However, Judge Collins granted permission for appeal to this Court because he considered that the appeal raised a point of law that needed to be authoritatively determined.
The short title of the 1997 Act is "An Act to make provision for protecting persons from harassment and similar conduct". The Act does not define harassment, save, in section 7(2)—part of an interpretation section for sections 1 to 5—and then only by an inclusive reference to its outcome, namely "References to harassing a person include alarming the person or causing the person distress".
Section 1 prohibits harassment in the following terms:
"(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another; and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other."
The objective nature of the prohibition indicated by section 1(2) is mirrored by the defences provided by section 1(3), in particular paragraph (c) as to the reasonableness of the course of conduct:
"(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
It may be that the principal mischief at which the 1997 Act was directed was the practice of stalking, not something normally done by a person in circumstances that could involve an employer in vicarious liability. Nevertheless, it is plain that the prohibition in section 1 of "a course of conduct … which amounts to harassment of another" is capable of wider application than to stalkers see e.g. Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1223, in which this Court agreed with a concession made by the defendants that publication of press articles is, in law, capable of amounting to harassment under the Act; see per Lord Phillips MR, with whom Jonathan Parker LJ and Lord Mustill agreed, at paras 15, 16, 29 and 30. In paras 29 and 30, when dealing with the interpretation section 7 as to the meaning of harassment in sections 1 to 5, he said:
"29. Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly de described as harassment. It seems to me that section 7 is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect.
"30. The Act does not attempt to define the type of conduct that is capable of constituting harassment. 'Harassment' is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct."
See also Sharma v Wells and Medico-Legal Investigations Ltd [2003] EWHC 1230, in which Gray J, in striking out a claim for harassment, adopted and elaborated upon those observations, at paragraph 22 of his judgment.
Section 2 makes harassment in breach of section 1 a criminal offence. It provides that "..[a] person who pursues a course of conduct in breach of section 1 is guilty of an offence". It makes no express provision for an employer's criminal responsibility for harassment by his employee, as, for example, does the Race Relations Act 1975, in sections 3A, 32(1) and 33.
Section 3 provides a civil remedy for the same conduct, and, in doing so, goes further than the common law in providing for damages for anxiety falling short of injury to health:
"(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim damages may be awarded for, among other things, any anxiety caused by the harassment and any financial loss resulting from the harassment."
The Facts
From 11 th November 1996 Mr Majrowski was employed by the Trust as a clinical audit co-ordinator. He alleged that, whilst working in that post, he was bullied, intimidated and harassed by his departmental manager, a Mrs Sandra Freeman, acting in the course of her employment by the Trust. He maintained that she was excessively critical of and strict about his time-keeping and his work; that, she isolated him by refusing to talk to him and treated him differently and unfavourably compared to other staff; that she was rude and abusive to him in front of other staff; and that she imposed unrealistic targets for his performance, threatening him with disciplinary action if he did not achieve them. If this appeal against the Judge's strike-out is allowed, it will be for determination on the facts whether she had indeed harassed him within the meaning of the 1997 Act in those ways.
Mr Majroswki pleaded his claim for breach of statutory duty against the Hospital under section 3 of the Act. He made no claim against the Trust in negligence or in contract for breach of his contract of employment, seemingly because his advisers considered that there was no evidence of foreseeability, and there were limitation problems. Nor did he make any claim direct against Mrs Freeman.
The judgment
The Judge, following a preliminary hearing for him to consider and rule, among other matters, whether section 3 created a statutory tort for which an employer could be vicariously liable, held in an extempore ruling that it did not. His reasoning in summary was that:
i) since the legislative history of the Act was to penalise conduct aimed at specific and identifiable individuals as distinct from groups or individuals, it cannot be assumed that Parliament intended vicarious liability to apply;
ii) as a matter of construction of the Act, a claim only lies against an individual who is personally pursing a course of conduct amounting to harassment against another individual, and also, possibly against a corporation acting through someone as its "controlling mind"; and
iii) Parliament did not intend to import the general principles of vicarious liability in tort into the remedy provided by section 3 since the Act was not intended to create another level of liability in employment law where the common law already provided adequate remedies:
"12 … Parliament did not intend simply to import the general law of tort wholesale into s. 3. That is apparent from the fact that the Parliament thought it right to confer a right under sub-section 2 to damages for anxiety which is not available to a claimant under the ordinary law tort. The essential question to be considered, putting it in a slightly different way, is whether the scheme and structure of the Act imports fundamental notions of vicarious liability into the remedy provided by s. 3(1)."
In reaching those conclusions, the Judge, first, found guidance in the reasoning of Rose LJ, with which Gibbs J agreed, in DPP v Dziurzynski [2000] EWHC 1380 (Admin). But in that case the issue was not whether the alleged harasser could be a corporation but whether the word "person" in various contexts in the 1997 Act, as one for whom the Act provides protection by way of criminal prosecution, could include a company or unspecified employees of a company. Rose LJ held, at paragraph 32 of his judgment, that, whilst, of course, the word "person" could, by virtue of the Interpretation Act 1987, be so construed unless...
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