It's hard to deal with harassment when legal definitions of it conflict

Employers may be familiar with the Majrowski decision, in which the House of Lords held that an employer can be vicariously liable under the Act for harassment committed by an employee in the course of their employment.  In addition, the Act can be relevant for employers who are seeking to protect their employees from unpleasant conduct from third parties or in situations involving employees and their colleagues.

The Act itself has caused numerous problems for legal advisers and practitioners alike; the primary difficulty being in identifying and advising on the required threshold of what constitutes harassment under the Act. The position has not been helped by conflicting interpretations from the courts.

Section 1 (1) of the Act states a person must not pursue a course of conduct that amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. The Act provides for both a criminal offence and a civil offence.

In the 2005 high-profile case of Majrowski vs Guy's & St Thomas' NHS Trust, during which Majrowski claimed his line manager bullied him in front of other employees due to his sexuality, the Court of Appeal indicated that "the conduct concerned must be of an order that would sustain criminal liability, and not merely civil liability on some other register... what occurred is a very long way away from anything that, in a sensible criminal regime, would lead to prosecution, much less to a conviction". The claim was eventually discontinued but not before the principle of vicarious liability under the Act was established.

However, in the recent decision in Ferguson vs British Gas Trading, the court appeared to impose a less stringent test.  In that case Lord Justice Jacob said that: "I accept that the course of conduct must be grave before the offence or tort of harassment is proved...it has never been suggested generally that the scope of the civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because... in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene...".  He went on to find that the conduct of British Gas in sending repeated invoices and threats to take legal action to a customer "was on the wrong side of the line, as amounting to "oppressive and unacceptable conduct".

The Court of Appeal has looked at this issue again in December in Judy Veakins vs Kier Islington.  In the Veakins case, the claimant was an electrician who claimed that her supervisor had harassed her. Veakins said that she had been picked on, she had been required to sign a register everyday, her working practices had changed, abusive language had been used to her and her letter of complaint had been ripped up.  Unusually, none of the claimant's evidence was challenged. At first instance the judge considered whether, in line with the judgment in Majrowski quoted above, a sensible prosecuting authority would pursue the allegations criminally. The judge was of the view that any prosecution would be considered to be an abuse of process and therefore the conduct concerned did not amount to harassment.

The Court of Appeal disagreed.  The court noted that in Majrowski Lord Nicholls had also said that "Where....the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people.  Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable." 

In Veakins, Lord Justice Kay said that what the court had to consider was whether the conduct complained of was "oppressive and unacceptable" as opposed to mainly unattractive, unreasonable or regrettable.  The evidence from the claimant of victimisation, demoralisation and her reduction to a state of clinical depression "self evidently" crossed the line into such conduct.

Veakins suggests that the threshold for harassment is not as high as had been thought and provides helpful guidance for those dealing with situations where individuals have been on the receiving end of unpleasant and/or unreasonable conduct from a third party in the workplace.

Tim Smith and Vanessa Latham are partners at national law firm Berrymans Lace Mawer