Mr William Majrowski was employed by Guy’s and St Thomas’ NHS Trust as a clinical co-ordinator. The Applicant alleged that he was bullied, harassed and intimidated by his departmental manager. The issue before the Court of Appeal was whether an employer could be held vicariously liable for a breach of statutory duty imposed only on his employee. Additionally, the Court had to decide whether an employer could be vicariously liable under the Protection from Harassment Act 1997 for harassment in breach of section 1 of the Act committed by one of its employees in the course of his or her employment.
In relation to the first contention the Court of Appeal stated that vicarious liability is a legal responsibility imposed on an employer for a tort committed by his employee in the course of employment. In order to determine whether an employer may be held to be liable for this tort depends upon the closeness of the connection between the offending conduct of the employee with the nature and circumstances of that employment. It was held that if the conduct is so closely connected with the his/her employment and/or is a risk reasonably incidental to the employer’s business then it is fair and just to hold the employer vicariously liable.
When considering the second contention, namely whether an employer could be held liable under the Protection from Harassment Act, the Judge in the first instance found that no such liability existed. He stated that a claim only lies against an individual who is personally pursuing a course of conduct amounting to harassment against another individual, and also, possibly against a corporation acting through someone as its “controlling mind”. The Judge commented that there was already sufficient protection at common law for employees who suffered harassment at work.
The Court of Appeal noted that the 1997 Act neither provides for vicarious liability nor expressly excludes it. Lord Justice Auld commented that nowadays an employer is expected to establish good working practices in order to avoid harassment within the workplace. If due to a failure to establish such practices or even despite these practices an employee suffers conduct which constitutes harassment under the 1997 Act then an employer may be held liable if a court finds it just and reasonable to do so. Whether an employer can be held liable depends on the facts of each case through reference to the criteria of ‘close connection’ and/or ‘reasonably incidental risk’.