A recent Court of Appeal ruling has been hailed as a controversial yet sensible decision by leading employment lawyers, and is expected to restrict the growing number of harassment claims brought against employers. Stuart Jones explains.

The decision in the recent case of Conn v Sunderland City Council is expected to dramatically limit compensation claims against employers under the Protection from Harassment Act 1997.

Following previous rulings expanding its application, the Act, which was brought in initially to prevent criminal harassment in the wider public context, had been used increasingly by employees against their employers.

This decision, which confirms the Act’s original purpose, will restrict those potential claims considerably. In this case, Mr Conn claimed he had been harassed and threatened by a manager on several occasions while employed by the council.

After resigning, Mr Conn issued proceedings claiming damages for breach of the Protection from Harassment Act 1997. The Court of Appeal has just dismissed his claim. This is a very controversial but at the same time sensible decision.

It is a clear reminder that the Protection from Harassment Act was originally introduced with the aim of providing a legal recourse to victims of criminal conduct – not as an easy route for people to bring compensation claims in the employment context, where the term harassment is more widely used and may often refer to conduct which, although of serious concern, is well short of the criminal standard.

The Protection from Harassment Act 1997

Since 1997, employees have been afforded protection from harassment not only by discrimination legislation but also under the Protection from Harassment Act.

In the case of Majrowski v Guys and St Thomas’s NHS Trust, the House of Lords held that employers could be vicariously liable under the Protection from Harassment Act 1997, for acts of harassment committed by employees in the course of their employment. In Majrowski, Lord Nicholls identified a boundary between conduct which was regrettable, to that which was unacceptable. He stated that only misconduct which was grave enough to attract criminal liability would amount to a breach of the Act.

In Conn v Sunderland City Council, the trial judge held that on two occasions Mr Conn’s manager had behaved in a manner that had breached the Act. He had lost his temper, acted aggressively and threatened violence.

To present a claim under the Act, harassment needs to occur on at least two occasions. However, the Court of Appeal held in Conn, that one of the occasions in question was not sufficiently serious to constitute harassment under the Act, and the other alone could not amount to a “course of conduct”. Mr Conn’s claim therefore failed.

This decision has emphasised the true purpose of the Act; providing protection to victims of criminal conduct, rather than a way for employees to bring workplace harassment claims.

The ruling in Conn has demonstrated that a breach of the 1997 Act is an extremely serious allegation, and for an employer to be found vicariously liable for an employee’s actions, the claimant would need to show that a criminal act had been committed within the workplace.

Employers will welcome the decision in Conn, as it should reduce the number of claims they face alleging harassment under the 1997 Act, which had significant advantages for claimants when compared with the anti-discrimination legislation:

• Under the Protection from Harassment Act 1997 Act, employees do not need to establish that the harassment was carried out in connection with their sex; sexual orientation; race; nationality; colour; religion; belief; disability; age.




• Under the Protection from Harassment Act 1997 Act, employees have six years as opposed to three months to bring a claim.




• Under the Protection from Harassment Act 1997 Act, an employer cannot rely on the statutory defence that they took “such steps that were reasonably practicable” to prevent the harassment taking place.

Implications for employers

Whilst this decision will be seen by employers as a step towards reducing claims under the Act, they must still be mindful that a claim for constructive dismissal may be brought if they fail to prevent the harassment, or once it has occurred, fail to deal with it appropriately.

Further, where the harassment is on the grounds of a person’s sex; sexual orientation; race; nationality; colour; religion; belief; disability; age, the employee may bring a claim in the Tribunal for discrimination. In Insitu Cleaning Co Ltd v Heads, the EAT stated that a single incident can amount to harassment under anti-discrimination legislation, provided it is sufficiently serious.

In Insitu Cleaning, Mrs Heads was subjected to a sexual remark by the son of one of the directors of Insitu Cleaning Co Ltd. The EAT held that the Tribunal was entitled to conclude that this remark alone was serious enough to amount to harassment under the Sex Discrimination Act 1975.

Therefore, employers should still ensure that they have robust diversity and anti-harassment policies, so that if they face such a claim they will be able to defend this using the statutory defence that they took all reasonably practicable steps to prevent such harassment occurring.

Stuart Jones is an employment partner at Weightmans solicitors. For more information, please email: Stuart.jones@weightmans.com