Liability for employee conduct

Majrowski v Guy's and St Thomas' NHS Trust [2005] IRLR 340


An employee alleged that he was bullied, intimidated and harassed by his departmental manager acting in the course of her employment. He instituted proceedings against the NHS trust that employed them both, under section 3 of the Protection from Harassment Act 1997. He contended that the manager's conduct amounted to harassment in breach of the Act for which the trust, as her employer, was liable.


A county court judge struck out the claim on the basis that the Act does not permit the imposition of vicarious liability for breach of its provisions. The Court of Appeal, by a majority, allowed an appeal.


Vicarious liability is not confined to common law claims, and employers may be vicariously liable under section 3 of the Act for their employees' acts of harassment of third parties, including fellow employees, committed in the course of employment. The Act neither expressly provides for vicarious liability nor expressly excludes it, and there is no good policy reason why vicarious liability should not apply to breaches of the Act.


According to the majority, there are safeguards for employers to deal with a 'floodgates' argument. First, it takes more than a single act of an employee in the course of employment to engage the liability of his employer. Second, to succeed in a claim under section 3, the claimant must establish, to an objective standard, at least that the course of conduct amounts to harassment. Third, the conduct, looked at in the statutory context, must make it just and reasonable in the circumstances to compensate the claimant.


Lord Justice Scott Baker dissented on the basis that the Act is aimed at unconscionable behaviour essentially by one individual to another, and that the common law of negligence provides claimants with an adequate framework for claiming damages against an employer for injury caused by stress at work in the nature of harassment. In this dissenting view, the majority decision presents 'a serious floodgates problem'.




Banks v Ablex Ltd [2005] IRLR 357


In this case, in contrast, a differently constituted Court of Appeal took it as read that an employer may incur vicarious liability under the Protection from Harassment Act 1997.


A nightshift supervisor alleged that a fellow employee had harassed her by loud and aggressive swearing and abuse accompanied by gesticulating and finger pointing so as to cause her distress and psychiatric injury. A county court judge found no evidence that the colleague's ill-tempered outbursts were directed at the supervisor and the Court of Appeal dismissed an appeal.


To establish harassment in breach of section 1 of the Act, a claimant must show that the alleged offender pursued a course of conduct amounting to harassment - which he knew, or ought to have known, amounted to harassment - having regard to whether a reasonable person possessing the same information would think that the course of conduct amounted to harassment. Thus, the conduct must be intentional and a single act of misconduct will not suffice.


Proof that the employer foresaw, or ought to have foreseen, that the particular type of injury suffered by the claimant was a possible consequence of the conduct complained of is a prerequisite to a finding of vicarious liability.


There was no evidence from which the judge could safely have concluded that the employer should have foreseen significant injury to the claimant's mental health as a possible consequence of the conduct complained of.





Tribunal procedures


Tyne and Wear Autistic Society v Smith [2005] IRLR 336


An employee presented an unfair dismissal claim electronically, using facilities provided on the Employment Tribunal Service Web site. He was later told that the tribunal had no trace of his application.


He presented another claim, but this was received out of time. A tribunal found that, while the service advertises that it is prepared to accept claims presented via the Internet and that this service is offered through its own Web site, no mention is made of the fact that the service is not operated directly by the ETS, but rather is hosted by a commercial e-mail service. The on-line applications are received by the host, which should then transfer them to the ETS, where they are received both in the central mailbox and in the mailbox of the relevant regional office.


In the circumstances, the tribunal was satisfied that receipt of an application by the host amounts to presentation to the tribunal. On appeal to the Employment Appeal Tribunal (EAT), the employer argued that a claim is presented only when the service that hosts the Web site forwards the application to the tribunal office. The EAT rejected this argument.


The ETS holds out the Web site as a means by which it will receive communications. If a claim is successfully submitted to the Web site in time, it does not matter if it is forwarded by the Web site host to the tribunal office computer on a later date, or date-stamped on a later date.


Once successful submission has been achieved, the claim will have been presented even if there are subsequent problems within the computer of the Web site host or the tribunal office.


Although claimants are advised to contact the tribunal if they do not receive confirmation, there is nothing on the Web site to deflect the general expectation that an application can be submitted via the site.




Bangs v Connex South Eastern Ltd [2005] IRLR 389


The Court of Appeal held that the EAT was wrong to say that there is an independent ground of appeal where it is established that delay in promulgating a tribunal decision made that decision 'unsafe'.


The key question is whether, because of unreasonable delay, there is a real risk that a party has in substance been deprived of the right to a fair trial, and whether it would be unfair or unjust to allow the delayed decision to stand.






Drawing inferences


Dattani v Chief Constable West Mercia Police [2005] IRLR 327


The EAT held that a tribunal was wrong not to consider whether it was appropriate to draw an inference of unlawful race discrimination from information supplied by the employer to the claimant, including the notice of appearance and further particulars.


A respondent, asked a direct question in writing by an aggrieved person, who fails to respond, or does so evasively, ought to be treated in the same way irrespective of whether a question has been asked under the statutory procedure. The case was remitted back to the tribunal to consider whether it was appropriate to draw inferences and, if so, what, from the documents provided by the employer.





Frustration of contract


Four Seasons Healthcare Ltd v Maughan [2005] IRLR 324


The EAT ruled that a tribunal did not err in holding that a contract was not frustrated by reason of the claimant having been charged with criminal offences relating to assaults on residents of the care home where he worked and the conditions on which he was granted bail.


Frustration requires an outside event or extraneous change of situation, not foreseen or provided for by the parties within the contract.


In this case, there was a contractual disciplinary procedure that provided for summary dismissal for 'verbal or physical abuse towards residents' and it was therefore always open to the employers to terminate the contract. The presence of such a detailed disciplinary procedure (interestingly) inhibited a finding in favour of frustration. Nor did the statutory requirement that a person employed to work at a care home should be fit to do so mean that this was a case of frustration.


Whether a person is fit to work at a care home involves a qualitative decision by either the employer or the criminal court, which is inconsistent with the idea of automatic termination arising from a frustrating event. Nor could it be accepted that the bail conditions, which effectively prevented the claimant from working at the home, amounted to a frustrating event.


Although a custodial sentence has been held to frustrate a contract of employment, there are no previous cases where it has been suggested that a period of bail can do so. Thus the employer's failure to pay wages while the employee was suspended amounted to unlawful deductions from wages.






Disability discrimination


Williams v J Walter Thompson Group Ltd [2005] IRLR 376


A tribunal found that an employer discriminated against a blind employee by failing to provide her with necessary or adequate training, adequate software and suitable work over a two-year period before she resigned.


The EAT allowed an appeal on the basis that the tribunal had failed to give a satisfactory explanation as to why the employer's justification for less favourable treatment, or for failing to make a reasonable adjustment, was neither material nor substantial. However, the Court of Appeal restored the original decision and declared that the unfair constructive dismissal of the claimant was also disability discrimination.


In accordance with the ruling in Jones v The Post Office [2001] IRLR 384, the tribunal's function in considering a justification defence is to apply an objective test to the reason relied on by the employer, and to the known facts. The approach is similar to the band or range of reasonable responses test applied by a tribunal in assessing the fairness of a dismissal. The EAT committed 'the sin of substitution' by disturbing permissible conclusions of fact and degree made by the tribunal, which had properly directed itself.




By Martin Edwards, Mace & Jones, Liverpool