Scotch game


Most English solicitors harbour a deep-seated fear of the Scottish legal system, with its peculiar terms - for example, pursuers and defenders, sheriffs and courts of session. And at every costs forum, someone with a Scottish accent is bound to stand up and irritatingly demonstrate to us that, north of the border, everything from speculative actions to legal aid for personal injury works just fine.



However, it might well pay English lawyers to think of Scotland in what might appear to be a totally parochial English case.



Majrowski v Guy's and St Thomas' NHS Trust (2006) UKHL 34 concerned the issue of whether an employer could, in principle, be vicariously liable for harassment carried out by its employee, contrary to the Protection from Harassment Act 1997. This Act was introduced to deal with stalkers and, as well as criminal sanctions and making provision for injunctive relief, creates a statutory tort that enables the victim to claim damages for the distress caused by the harassment. It has caught the attention of personal injury and employment lawyers in recent years because of the possibility of using it to allow a remedy to those bullied at work (but who do not suffer discrimination), or as an alternative to stress-at-work claims. However, unless the employer is vicariously liable, possible actions will be limited, as the perpetrator may be a man of straw.



In Majrowski, the issue of vicarious liability was taken as a preliminary issue. The claimant won 2-1 in the Court of Appeal, but there had been a strong dissenting judgment from Lord Justice Scott Baker.



It is clear from the Lords' judgment that they were also split on the principle of whether Parliament had really meant to create vicarious liability for this kind of statutory tort. Baroness Hale, in particular, having spent some considerable time circumscribing the boundaries of actionable stress-at-work claims (she devised the 16 hurdles for claimants in Sutherland v Hatton (2002) EWCA Civ 76), was obviously irritated by what she considers to have been Parliament's rather shorthand approach to legislation. Lord Nicholls, on the other hand, could see no reason on policy grounds for denying the claimant relief against an employer who was vicariously liable.



In Lister v Hesley Hall (2001) UKHL 22 and Dubai Aluminium v Salaam (2002) UKHL 48, the Lords had made it clear that a wrong closely connected to the acts an employee is authorised to do is regarded as being in the course of employment. For example, in Mattis v Pollock (2003) EWCA Civ 887, the night-club was liable for a doorman who, following an altercation at the club, went home, armed himself with a knife, returned and stabbed a customer in the street. Thus, if vicarious liability applied in principle, most employers would be liable for harassment carried out by their employees.



It was the Scottish judge, Lord Hope, who spotted the killer point. He noticed that the part of the Act that related to consequent amendments to rather arcane points of Scottish law on limitation clearly provided for the principle of vicarious liability to apply in Scotland ('that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such person'). He persuaded his fellow judges that Parliament could not have intended to create vicarious liability for harassment in one part of the UK, but not in others. Therefore, the appeal was somewhat reluctantly dismissed and the claim against the employer allowed to proceed.



Claims under the Act in respect of bullying that caused psychiatric injury have certain advantages to normal common law or breach of statutory duty claims for workplace stress.



First, foreseeability of injury is not an essential ingredient to establish a claim under the Act. In stress-at-work claims, this has become a major problem since Sutherland. Unless the employer knows of a particular vulnerability, it is difficult to establish breach, but the existence of the vulnerability might impact on causation or damage. Second, it is not necessary to establish a medically recognised psychiatric condition. Distress is all that is needed. Third, the limitation is six years and not three (which can often be problematic in stress claims), although discretion under section 33 of the Limitation Act 1980 will not be available. As a deliberate act, rather than a negligent one, there might also be issues as to whether an employer's compulsory employers' liability insurance covers such claims, although in Hawley v Luminar (2006) EWCA Civ 18 it was held that an assault by a doorman on a member of the public did constitute an accidental injury for the purposes of a public liability policy.



Were their Lordships right to fear a flood of claims as a result of this judgment? Probably not, although it will undoubtedly provide a route to justice and compensation for some who have been appallingly treated in the workplace. While bullying is unacceptable in the modern workplace, it is still common, and stress is one of the most common work-related illnesses today. It will be necessary for the claimant to establish a course of conduct (Banks v Ablex (2005) EWCA Civ 173). And it is likely that as the liability falls to be determined under the 1997 Act, which also provides for criminal sanctions, a high degree of culpable behaviour will be required to found liability.



There will also be problems if similar claims have been brought for discrimination in the employment tribunal. A week before the Lords' decision, Mr Justice Mackay dismissed the claimant's action in Daniels v Commissioner of Police for the Metropolis (2006) EWHC 1622 QB for a variety of these reasons.



David Marshall, Anthony Gold, London