Veakins v Kier Islington Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Rimer,Lord Justice Waller |
| Judgment Date | 02 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1288 |
| Docket Number | Case No: B2/2009/0733 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 2009 |
[2009] EWCA Civ 1288
Before : Lord Justice Waller
Lord Justice Maurice Kay
and
Lord Justice Rimer
Case No: B2/2009/0733
REF NO: 7ML01656
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(MR RECORDER GRANGER)
Mr Mark Turner QC (instructed by Messrs Kelsall & Company) for the Appellant
Mr Andrew Hogarth QC and Mr Joel Kendall (instructed by Messrs Watmores) for the Respondent
Hearing date : 21 October 2009
Lord Justice Maurice Kay :
Section 1(1) of the Protection from Harassment Act 1979 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 exhaustively defined by the Act but section 7(2) provides that it includes “alarming the person or causing the person distress”. This appeal is concerned with an action for damages for harassment. The appellant claims that she was harassed at work by her supervisor Mrs Jackie Lavy for whose acts the respondent is vicariously liable. At the trial in Brighton County Court on 24 October 2008, Mr Recorder Grainger dismissed the claim. Although the appellant's evidence was not challenged and the respondent called no evidence, and although the respondent did not dispute vicarious liability if harassment was established, the Recorder decided that the proven acts did not amount to harassment.
The Recorder described the facts in these passages in his judgment:
“Miss Veakins was employed by the defendants … as an electrician – initially as a trainee – from September 2003 to September 2005. She then went on sick leave for depression from September 2005 until June 2006 when she decided to terminate her employment. The problem was in the period from July to September 2005 when a lady called Jackie Lavy became Miss Veakins' supervisor …
In her statement Miss Veakins said that Mrs Lavy clearly did not like her. They had an initial dispute over a wages problem, of a kind which is perfectly common in the workplace, leading to a possibly embarrassing 'telling-off' (that was Miss Veakins phrase) in front of others. Miss Veakins said that she felt Mrs Lavy persistently picked on her, singling her out from her fellow employees for no reason at all. There were further disputes about time-keeping and about Mrs Lavy requiring the claimant for a time to sign an In and Out register every day. Miss Veakins complained that Mrs Lavy changed the existing practice about Miss Veakins being picked up on the way to a particular job by other workmen. There was also a complaint about Mrs Lavy on one occasion telling her to “fuck off”, although Miss Veakins acknowledged that that word was not in itself unusual in this work environment. There was also a complaint about Mrs Lavy ripping up in front of Miss Veakins a letter of complaint that Miss Veakins had written.
Miss Veakins said that Mrs Lavy clearly did not like her and made life hell for her. By the end Miss Veakins acknowledged that she did not like Mrs Lavy either and by that stage she accepted that she may have been a little confrontational herself, in particular about the question of wages.
There is no doubt that Mrs Lavy was the principal problem. Paragraph 12 of the witness statement reads:
'Apart from Mrs Lavy the job was perfect for me. I had worked hard for the company for two years and eight months had been spent working without pay. I did not want this taken away just because someone did not like me.'
There were complaints about office gossip and also about Mrs Lavy asking other employees questions about Miss Veakins private life, as Miss Veakins saw it to arm herself with useful material for a campaign of victimisation.”
Although the appellant was cross-examined the Recorder observed that in all essentials the matters alleged in her witness statement were not challenged.
The Recorder's approach to what, as a matter of law, amounts to harassment was expressed in these terms:
“Harassment under section 1 … not only affords a civil remedy under section 3 but also constitutes a criminal offence under section 2. The relevant and binding authorities appear to me expressly to exhort me as a first instance tribunal to bear that in mind, when deciding whether the conduct complained of constitutes harassment within section 1.”
The Recorder referred to the decisions of the Court of Appeal and the House of Lords in Majrowski v Guy's and St Thomas' NHS Trust [2005] EWCA Civ 251, [2006] UKHL 34, [2007] 1 AC 22 He then paid particular attention to Conn v Council and City of Sunderland [2007] EWCA Civ 1492, commenting that there “the point was addressed … head-on”. He set out a passage from the judgment of Buxton LJ in Conn who, having referred to the speech of Lord Nicholls in Majrowski, said (at paragraph 18):
“Crucial to that [the type of conduct that crosses the line into harassment] is Lord Nicholls' determination … that the conduct concerned must be of an order that would sustain criminal liability, and not merely civil liability on some other register. Had the Recorder had that requirement in mind when he came to this part of his judgment, it seems to me I have to say completely impossible that he would have concluded that the third incident, as it had been called … could amount to harassment. But what occurred is a very long way away from anything that, in a sensible criminal regime, would lead to a prosecution, much less to a conviction.”
In the present case the Recorder's conclusion was stated in these passages:
“At the end of the day it is a matter for my judgment on the facts, in particular on Miss Veakins' witness statement and on her evidence but also on the other documents that I have read, whether this conduct constitutes harassment within the meaning of section 1 of the Act. I take the view that it plainly does not, very largely because I cannot see that any sensible prosecuting authority would pursue these allegations criminally; or, even if a prosecution were somehow brought, say perhaps by the claimant herself in a private prosecution, I cannot see that any prosecution would suffer any fate other than to be brought to an early end as an abuse of process.
These extremely regrettable episodes, though made out factually, do not seem to me to come anywhere near the line of criminality such as would bring them within section 1 of the Act.”
He added that he did not doubt that “the whole of this experience was unpleasant and upsetting from Miss Veakins' point of view”. Nevertheless he dismissed her claim.
On behalf of the appellant, Mr Mark Turner QC (who did not appear below) submits that the Recorder erred both in his evaluation of the evidence and in his approach to the law. The complaint about the evaluation of the evidence is that the judgment contains no actual evaluation of the behaviour of Mrs Lavy beyond the conclusion that it was not such...
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