Legal Research Record

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1 Legal Research Record Summary of problem(s) Design and Dress Limited (DDL) has experienced problems due to the alleged harassment of one of their employees, Susie Baker, by another employee, Stephen Harding which, despite internal investigation, has now lead to a formal police report. Can DDL be held be liable for damages in respect of a possible civil claim for harassment; if so on what legal basis and to what degree. Key words or phrases Harassment Protection from harassment Employer s liability Vicarious liability Damages/sanctions in harassment cases Obvious sources/areas of law Halsbury s Laws Practitioner texts Statutes Statutory Instruments Case law Client objective(s) To ascertain whether DDL can be held liable for any damages in respect of civil proceedings concerning the harassment alleged, notwithstanding that

2 their internal complaints procedure was complied with. If so, to what degree is there anything they can do to placate the issue, and are there any steps they should be taking now. Record of research undertaken SECONDARY SOURCES Hard Copy Sources Practioner s Texts I looked in a text called Smith and Wood s Employment Law, 9 th Edition. index looked up vicarious liability, specifically relating to discrimination pp This reference related to sexual discrimination, not relevant in this search but noted that s 41(1) of the Sexual Discrimination Act makes the employer vicariously liable for discrimination perpetrated by the complainant s fellow employees in the course of their employment, whether or not it is done with

3 the employer s knowledge or approval, but that a defence was available under s 41(3) where the employer took reasonable steps to prevent such conduct. Need to check if there is such a provision relating to more general harassment between employees, and the protection that employer must provide. index looked up protection from harassment p147 relating to the duties of the employer. Page referred to the Protection from Harassment Act 1997 which makes harassment (undefined in the statute) a criminal offence and attaches a right of civil action (tortious) for the victim, subject to a 6 year limitation period and with the possibility of damages merely for anxiety caused by the harassment (thus is seems it is not necessary to establish a mental injury of any sort). The passage makes reference to several cases: Majoraski v Guys & St Thomas NHS Trust [2006] IRLR 695 HL; Sutherlad v Hatton; Lister v Hesley Hall [2001] ICR 665 In support: that the Act does apply in the employment context and that an employer can be vicariously liable for the perpetrator s actions and that such vicarious liability is strict. An employer would seem to be vicariously liable if there is a close enough or reasonable connection between the tort/breach and the work/employment. Also noted that harassment remains undefined in the Act and is purely a question of fact, but Lady Hale in Majoraski is noted to have said that it is important to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive or unacceptable behaviour. The test being whether a reasonable person would think that the conduct amounted to

4 harassment of another, (s 1(2)) and, that it must be a course of conduct not merely a one-off event (s 1(1)). It would also appear that the Act can be used as an alternative to common law negligence claims, and that there is no defence that an employer took all reasonable steps to prevent the harassment (as there is with discrimination as seen above). I then noted that further research into these primary sources would be needed, in order to further look into the legal points arising from the cases and the impacts these would have on the interpretation of the Act. Primary sources: Protection from Harassment Act 1997 s 1(1); s 1(2) Majoraski v Guys & St Thomas NHS Trust [2006] IRLR 695 HL; Sutherlad v Hatton Lister v Hesley Hall [2001] ICR 665 Next, I wanted to see if the text had any information on a possible course of action for the employer if they were held vicariously liable under the Act. index vicarious liability duties of the employee pp The section notes that an employee owes to his employer an implied duty of care in carrying out his job and thus once sued the employer has a legal action against the employee for a breach of this duty and can seek an indemnity from him in respect of any damages awarded either for: - Breach of contract (for incurring him in liability to pay damages the employee breached his implied duty of care [Lister v Romford])

5 - Tort; for where the employer has been held vicariously liable he and the negligent employee are in law joint tortfeasors so the employer may sue for a contribution under the Civil Liability (Contribution) Act Primary sources: Lister v Romford Civil Liability (Contribution) Act 1978 Electronic sources Halsbury s Laws Direct Searched protection from harassment 152. Prohibitions from Harassment and offence of harassment. A person must not pursue a course of conduct which amounts to harassment of another person, and which he knows or ought to know amounts to harassment of the other (per Protection of Harassment Act 1997) These provisions do not, however, apply to a course of conduct if the person who pursued it shows that the course of conduct was reasonable in the particular circumstances. A person who pursues a course of conduct in breach of these provisions is guilty of an offence, and liable on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding level 5 on the standard scale, or to both. 'Conduct' includes speech: s 7(4).

6 Although there can be a course of conduct comprising only two incidents, the fewer the incidents and the wider apart they are spread the less likely it is that a finding of harassment can reasonably be made: Lau v DPP [2000] 1 FLR 799, [2000] Crim LR 580, DC. Nevertheless, incidents as far apart as a year can constitute a course of conduct. Again, highlights the need to research the Act itself in some detail; in particular the sections mentioned thus far. Nothing in the update section to suggest 1997 Act amended. Searched vicarious liability Regarding criminal liability under the Act there can be seen to be none: 59. Vicarious liability: the general rule. In general an employer or principal is not criminally liable for an offence committed by his employee or agent even though it is committed in the course of the employment or agency. There is no presumption that a crime committed by an employee or agent in the course of his duties has been authorised by the employer or principal. Regarding civil liability, however: Results produced much the same picture as above (that the employer may be liable), no new relevant information, similar primary sources were referred to. Preliminary Analysis The law found above fits the client s facts. It would appear that DDL may be held vicariously liable for the actions of Mr Harding under the Protection from Harassment Act, however if such a claim is successful (if harassment is said to have occurred and such acts said to have a reasonable connection with the work/employment) DDL may be able to

7 claim a contribution under the Civil Liability (Contribution) Act from Mr Harding towards the amount payable. I will now check the primary sources to ensure that the law is current and to see if there is any further guidance I can give the client. PRIMARY SOURCES Electronic sources Legislation Westlaw Legislation Searched Protection from Harassment Act Protection from Harassment Act 1997 c. 40 s1. Prohibition of harassment. (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. (1A) A person must not pursue a course of conduct (a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above) (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do.;

8 (2)1 For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to [or involves]2 harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to [or involved]2 harassment of the other. (3) Subsection (1) [or (1A)]3 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. 1. Added by Serious Organised Crime and Police Act 2005 c. 15 Pt 4 s.125(2)(a) (July 1, 2005) 2. Words inserted by Serious Organised Crime and Police Act 2005 c. 15 Pt 4 s.125(2)(b) (July 1, 2005) 3. Words inserted by Serious Organised Crime and Police Act 2005 c. 15 Pt 4 s.125(2)(c) (July 1, 2005) s 2. Offence of Harassment (Provision merely details the fact Harassment is a crime under the Act) 3. Civil remedy. (1) An actual or apprehended breach of [section 1(1)] 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. [ 3A Injunctions to protect persons from harassment within section 1(1A) (1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person ( the relevant person ). (2) In such a case (a) any person who is or may be a victim of the course of conduct in question, or

9 (b) any person who is or may be a person falling within section 1(1A)(c), may apply to the High Court or a county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction. (3) Section 3(3) to (9) apply in relation to an injunction granted under subsection (2) above as they apply in relation to an injunction granted as mentioned in section 3(3)(a). ]1 1. Added by Serious Organised Crime and Police Act 2005 c. 15 Pt 4 s.125(5) (July 1, 2005) s 4. Putting people in fear of violence. (not entirely relevant here, no evidence of violence not necessary to pursue this instead of s 2) s 5. Restraining orders. (again not a viable course of action in the circumstances) s 6. Limitation. In section 11 of the Limitation Act 1980 (special time limit for actions in respect of personal injuries), after subsection (1) there is inserted (1A) This section does not apply to any action brought for damages under section 3 of the Protection from Harassment Act Interpretation of this group of sections. (1) This section applies for the interpretation of sections 1 to 5. (2) References to harassing a person include alarming the person or causing the person distress. [ (3) A course of conduct must involve (a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person, or (b) in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons. ]1 [ (3A) A person's conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another (a) to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and

10 (b) to be conduct in relation to which the other's knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring. ]2 (4) Conduct includes speech. [ (5) References to a person, in the context of the harassment of a person, are references to a person who is an individual. ]3 1. Substituted by Serious Organised Crime and Police Act 2005 c. 15 Pt 4 s.125(7)(a) (July 1, 2005) 2. Added by Criminal Justice and Police Act 2001 c. 16 Pt 1 c.3 s.44(1) (August 1, 2001) 3. Added by Serious Organised Crime and Police Act 2005 c. 15 Pt 4 s.125(7)(b) (July 1, 2005) N.B. s 7. Is flagged as being subject to a pending amendment The further sections refer to provisions in force in Northern Ireland and Scotland. I then went back to the original search results to look at the relevant SI s: 1. Protection from Harassment Act 1997 (Commencement No. 3) Order 1998/1902 Arrangement of SI 2. Protection from Harassment Act 1997 (Commencement) (No. 1) Order 1997/1418 Arrangement of SI 3. Protection from Harassment Act 1997 (Commencement) (No. 2) Order 1997/1498 Arrangement of SI

11 The above SI s refer to commencement proceedings only and do not offer any other relevant information. No relevant updates on the 1997 Act it seems it is current and correct law. Civil Liability (Contribution) Act Entitlement to contribution. (1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise). 2. Assessment of contribution. (1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question. (2) Subject to subsection (3) below, the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. 3. Proceedings against persons jointly liable for the same debt or damage. Judgment recovered against any person liable in respect of any debt or damage shall not be a bar to an action, or to the continuance of an action, against any other person who is (apart from any such bar) jointly liable with him in respect of the same debt or damage. Again, there seems to have been no alteration to these provisions dictating that the position set out above is not current and correct law.

12 Case reports Majoraski v Guys & St Thomas NHS Trust [2006] IRLR 695 HL Sutherlad v Hatton Lexis-Nexis Butterworths searched under cases tab using the party names - Lister v Hesley Hall [2001] ICR Lord Hobhouse of Woodborough and Lord Millett - Vicarious liability - Employment - Course of employment - Warden of school boarding house sexually abusing residents - Whether employers vicariously liable - Whether sufficient connection between acts of abuse and work warden employed to do - Between 1979 and 1982 the claimants were resident in a boarding house attached to a school owned and managed by the defendants. The warden of the boarding house employed by them, without their knowledge, systematically sexually abused the claimants. The claimants claimed damages against the defendants for the personal injuries involved, contending that the defendants had been negligent in their care, selection and control of the warden, alternatively that they were vicariously liable for the torts committed by him. The judge dismissed the direct claims in negligence. He held that the defendants could not be held vicariously liable for the warden's torts but that they were vicariously liable for the warden's failure to report to them his intentions to commit acts of abuse and the harmful consequences to the claimants of those acts. The Court of Appeal allowed an appeal by the defendants, holding that the warden's acts could not be regarded as an unauthorised mode of carrying out his authorised duties. - On appeal by two of the claimants - Held, allowing the appeal, that having regard to the circumstances of the warden's employment, including the close contact with the pupils and the inherent risks that it involved, there was a sufficient

13 connection between the work that he had been employed to do and the acts of abuse that he had committed for those acts to be regarded as having been committed within the scope of his employment and the defendants should be held vicariously liable for them Lister v Romford Result to supervisor/advice to client Time taken 12 Hours

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