MAGRATH LLP HUMAN RESOURCES UPDATE
STATUTORY DUTY AND VICARIOUS LIABILITY

It is well established law that an employer may be held vicariously liable for its employees’ breaches of common law obligations and statutory duties where this is expressly stated within the statute. This week, however, the Court of Appeal has held for the first time in the English Courts, that an employer may also be liable for a breach of the statutory duty which has only been imposed upon an employee.

In its decision in Majrowski v Guy’s & St Thomas’s NHS Trust, the Court of Appeal held that an employer may be vicariously liable under the Protection from Harassment Act 1997 (“the 1997 Act”) for harassment committed by one of its employees in the course of his or her employment.

The Claimant, Mr. Majrowski, was employed by Guy’s & St Thomas’s NHS Trust. During his employment, he was bullied, intimidated and harassed by his manager acting in the course of her employment. The Court of Appeal held that the thrust of the 1997 Act is clear, ‘namely to protect individuals from a course of conduct amounting to harassment, regardless of who causes it’. The Court of Appeal has stated that there is nothing in the 1997 Act that prevents an employer being held as vicariously liable for harassment.

Potentially, therefore, the implications of this case could be wide reaching. It means that an employee can sue an employer for damages for harassment by a co-worker. Under the 1997 Act, harassment is not clearly defined but will probably include work place bullying or a series of unreasonable instructions.

As a result of this decision, an employee may now be in a position to sue an employer where previously this may not have been possible.  For example, an employee may be able to sue an employer for harassment even if there is no discriminatory element to the harassment, or if the employee does not suffer personal injury as a result of the harassment. Further, if personal injury is suffered by the employee because of the harassment, then an employee may no longer be required to show that the harm suffered was “reasonably foreseeable” by the harasser or employer, i.e. whether such injury was foreseeable in a person of “ordinary fortitude”.  Therefore, under the 1997 Act, the strict test of foreseeability for personal injury, as previously laid down by the Court, need not be established.  Under the 1997 Act, claimants are expressly permitted to recover damages for anxiety caused by the harassment.