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Lords uphold ruling on vicarious liability in Majrowski case

Discussion in 'Governors' started by ailingteacher, Jul 18, 2006.

  1. I know this has been posted before, but wanted to remind everyone of this new ruling:

    Lords uphold ruling on vicarious liability in Majrowski case
    Personnel Today18 July 2006 08:00This article first appeared in Personnel Today magazine. Subscribe online and save 20%.


    Employers can be held vicariously liable for the bullying behaviour of their staff, following a landmark ruling in the House of Lords.

    In the case of Majrowski v Guy's and St Thomas's NHS Trust, the Lords confirmed that the Protection from Harassment Act (1997), which was originally enacted to combat stalkers, applies to harassment of all types and protects employees while they are at work and elsewhere.

    Majrowski, an audit co-ordinator for Guy's and St Thomas's NHS Trust in London, alleged he was harassed at work by his line manager.

    He made an internal complaint, which found he had been subjected to homophobic harassment.

    Majrowski later sued his employers under the Protection from Harassment Act, arguing that the trust was vicariously liable for the behaviour of the manager who harassed him.

    The original County Court decision said the legislation did not permit vicarious liability, but this was overturned by the Court of Appeal in March last year and the Lords upheld that decision last week.

    Nick Hanning, a legal executive at law firm Reynolds Williams, which represented Majrowski, said the ruling had massive implications for employers as it provides a potential remedy for all targets of bullying and harassment, irrespective of the cause.

    "The judgment effectively extends the duty on employers to protect their employees from ill treatment and could lead to a considerable number of claims being made." Hanning said.

    "This case is a clear warning to employers that, in the case of harassment, prevention is the only cure. They cannot simply pay lip service to the anti-harassment policies," he added.

    Hanning said the decision was particularly important as the time limit for claims under the Act was six months - twice the limit for discrimination claims.

    Legal implications of the decision

    Where one employee, during the course of their employment, harasses another employee or anyone else, the employer will be vicariously liable for that harassment if a sufficiently clear link between the work and the harassment can be established.

    Importantly, under the Act it is not necessary for the victim of the harassment to prove they have suffered an injury, whether physical or psychological.

    Harassment is not specifically defined by the Act and may cover many types of situation in which an employee is caused alarm, anxiety or distress. Therefore, damages may be claimed in cases of bullying in which there is no apparent element of race or sex discrimination.

    For more legal analysis see 25 July issue of Personnel Today.
     
  2. I know this has been posted before, but wanted to remind everyone of this new ruling:

    Lords uphold ruling on vicarious liability in Majrowski case
    Personnel Today18 July 2006 08:00This article first appeared in Personnel Today magazine. Subscribe online and save 20%.


    Employers can be held vicariously liable for the bullying behaviour of their staff, following a landmark ruling in the House of Lords.

    In the case of Majrowski v Guy's and St Thomas's NHS Trust, the Lords confirmed that the Protection from Harassment Act (1997), which was originally enacted to combat stalkers, applies to harassment of all types and protects employees while they are at work and elsewhere.

    Majrowski, an audit co-ordinator for Guy's and St Thomas's NHS Trust in London, alleged he was harassed at work by his line manager.

    He made an internal complaint, which found he had been subjected to homophobic harassment.

    Majrowski later sued his employers under the Protection from Harassment Act, arguing that the trust was vicariously liable for the behaviour of the manager who harassed him.

    The original County Court decision said the legislation did not permit vicarious liability, but this was overturned by the Court of Appeal in March last year and the Lords upheld that decision last week.

    Nick Hanning, a legal executive at law firm Reynolds Williams, which represented Majrowski, said the ruling had massive implications for employers as it provides a potential remedy for all targets of bullying and harassment, irrespective of the cause.

    "The judgment effectively extends the duty on employers to protect their employees from ill treatment and could lead to a considerable number of claims being made." Hanning said.

    "This case is a clear warning to employers that, in the case of harassment, prevention is the only cure. They cannot simply pay lip service to the anti-harassment policies," he added.

    Hanning said the decision was particularly important as the time limit for claims under the Act was six months - twice the limit for discrimination claims.

    Legal implications of the decision

    Where one employee, during the course of their employment, harasses another employee or anyone else, the employer will be vicariously liable for that harassment if a sufficiently clear link between the work and the harassment can be established.

    Importantly, under the Act it is not necessary for the victim of the harassment to prove they have suffered an injury, whether physical or psychological.

    Harassment is not specifically defined by the Act and may cover many types of situation in which an employee is caused alarm, anxiety or distress. Therefore, damages may be claimed in cases of bullying in which there is no apparent element of race or sex discrimination.

    For more legal analysis see 25 July issue of Personnel Today.
     
  3. stonerose

    stonerose Occasional commenter

    This is a welcome step in the right direction for anyone concerned with issues to do with bullying.

    I lookforward to seeing it cited in a successful case against bullying by a teacher for the first time.
     
  4. Bullying of teachers - The PHA 1997 - Narcissistic Personality Disorder.

    The Protection from Harassment Act (PHA) 1997 act should have several very important advantages for teachers being bullied. The time limit for claims is 6 years for the PHA, there is no need to have gone through the often ineffective internal dignity at work procedures, you don't need to leave your job (but if things are so bad you can still use the Act), it doesn't matter if the bully moves on to bigger and better posts as a reward for their poor / damaging behaviour - the council / education authority is still it seems vicariously liable for the damage they caused. Simply having and implementing Dignity at Work policies is no defence for the employer. Further, bullying behaviour by HR departments and school management teams aimed at making victims drop claims - e.g. procrastination - inaccurate minute taking - shifting blame from bully to victim, closing ranks etc. etc all add to the stress suffered by the victims and their actions should be self defeating and lead to higher awards for damages as again, the councils are in the same way vicariously liable for their employees actions (or inactions).

    The PHA also has advantages over personal injury and discrimination legislation as there is no need to prove psychiatric illness / injury, you simply must prove that you have suffered anxiety and stress as a result of other employees' behaviour.

    Employers (the education authorities) can best protect themselves by taking bullying seriously and dealing effectively with bullies so that victims are satisfied by HR response to their claims and so do not pursue remedy through the courts.

    In schools, contrary to popular belief, it is often the good teachers who are bullied simply because they are both popular and capable.

    If, as a teacher, you are being bullied or know someone who is, it would be worth reading up on Narcissistic Personality Disorder (NPD) as people with this condition often are promoted within the education system by convincing interview panels that they are what they need - the reality is that people with NDP create havoc all around them. They are compulsive and convincing liars and use manipulation at all levels to make themselves look good by convincing their superiors that they have incompetent staff. They often create infighting within their departments and encourage others to engage in bullying behaviours either actively or as bystanders, they are often control freaks and use a spectrum of tools including rumour, gossip, third party involvement, undermining, humiliation, nit-picking, isolation, playing victim when called to account etc etc to destroy their victim's self esteem and confidence. The are usually charming to those they want to impress and abuse their position of trust and rank to destroy their victims. They are not nice people and benefit no-one, least of all the pupils and parents. They need to be unmasked and routed from the education system !! One warning though - before you do anything - read all you can first about NPD so that you can predict their behaviour (they are very predictable once you understand their dysfunctionality). As soon as they realise that you can see through them they will step up their action to discredit you - You must be well prepared. Once you understand and accept that people with NPD have no conscience, are totally unable to empathise, cannot accept even the slightest criticism and are addicted to sources of narcissistic supply often gained from weak sycophants who stroke their egos, then you have a chance. Gather evidence, keep journals, be careful. Remember, Narcissists use others to meet their owns ends and even if they are removed from positions of power, the damaged departments they leave behind can remain dysfunctional because of the infighting they have caused. Further, depending where they are on the management ladder, they tend to favour and promote weak individuals below them so that they can easily maintain control. The wrong people are often promoted by narcissists.

    One final warning - from what I have read, NPD has a compulsive obsessive nature and there is no cure - counselling a narcissist simply teaches them more tricks and new ways to abuse, they are masters at deception and as well as doing well at interviews, it is recognised that they can fool health and HR professionals. For any employer the direct and / or indirect cost of protecting a narcissist will potentially be high and ongoing. With the vicarious liability extension to the PHA, claims could continue long after they do the damage. The sooner they are dealt with the better it will be for the organisation.

    All the above is only my opinion based both on my own experience and research - its up to you do your own research and to make up your own mind before you do anything. Things can only get better - Good luck - believe in yourself!
     
  5. So, if the head is bullying a teacher and the HR person was present while this happened and did not tell the head that they were going against the Dignity at work policy or the Disability Discrimination Act, does that mean that the LEA can be held vicariusly liable for both the head and the HR's behaviour.

    for example, asking personal questions caused embarrasment, intimidation and left me feeling harrassed. I am suffering with depression, having had to go to councelling to try to bring my emotions under control (I still cry when I think about the meeting, 4 months later) - would my situation be applicable to the ruling?
     
  6. Possibly. You have a lot of hoops to get through before this, though. First is the grievance. Then the tribunal.

    The Protection from Harrassment Act is a court situation. You would have to hire a barrister. It is quite doubtful that if you won in a tribunal, the union would pay for a barrister to go through the Act for you.

    Still, it is something to keep in mind for the future.
     
  7. The OP explains some background as to why the PfHA is important to any discussion relating to Bullying of staff in schools.
     
  8. Re 'Capability proceedings' this post is relevant. Further info can be found by searching the net for Majrowski and/or PFHA and/or vicarious.
     
  9. You have gone outside the time limit for an employment tribunal(3 months minus a day), unless you filed a formal grievance. Contact an employment solicitor for advice. I am being bullied on almost a daily basis by my Head. The authority know, but have failed to stop it. This ruling is another option open to me. The only answer I want is to be able to go to work and not be scared, or for people to be scared to talk to me.
     
  10. The PfHA is an important piece of legislation when dealing with workplace bullying incidents in schools. Damages are unlimited, you have six years to claim, you do not need to go through abusive internal grievance procedures and the level of proof to establish that you have suffered unnescessary distress and / or anxiety is less that that required for personal injury claims. Finally, you don't need to leave your job. There are downsides but by understanding the legislation, then you can collect evidence on failings on the part of your employer and make it clear to them that you both understand you rights and that their continued failures to tackle bullying improves your case for making a sucessful claim.
     
  11. Following this with interest. I am off work with anxiety at the moment. There have been several issues at work that remain unresolved and the last straw in October last year was when I mentioned in a staff meeting that I had had to spend several days looking at the new Early years framework and there was a lot needed doing. I was late beginning to get my head round it for other pressures. She snapped back and very forcefully and dismissively said She had heard it was nothing! I went to see her and said we needed to talk, emphasising the need. I began to not sleep well and waited for her to find time to fit in my request. Meanwhile I received the shocking news that my dad had stomach cancer. He behaved as if it was an imminent death and I fell to pieces I could not see how I could cope with my dad's situation and the workload to implement the E.Y.F.S I run a F.U mornings only and the Yr R move int o K.S.1 room p.m
    The two staff who job share that room have been on no training and I have have been given no opportunity to feed back with them, in fact she regards it as interfering with their right to work creatively. I mentioned my dad was ill and her reply was well you just have to get on with it. I t got to the point where I knew I would have to have time off .Unfortunately I lost the plot with her. I was in the wrong and apologised later that day. I had 3 weeks off- no medication and went to see the head just before Xmas with a short agenda of concerns, She called them grievances! She told me she had referred me to O H and said she would need to talk to the K.S 1 teachers
    Just before Xmas received a note from H.R to say a back to work meeting was required. After 3 weeks off! This woman came to my home and we were on our own My husband assured me H.R were there to help.!
    H.R subjected me to 2 hours of the heads agenda of criticism.She told me I shouldn't lie to O.H If anything was at fault it was my doing and the head needed to tell me how to work with colleagues properly.The written report was nearly as bad. My head teacher friends were appalled with its contents. I contacted my union and I requested to H.R the report to stay in draft form. When I went to The O.H she had sent this report there. We requested that another H.R person to take over as procedures were not used properly and were turned down. The head thought she was doing a marvellous job.
    I have only just found the strength to reply to the report, and now I have a formal review issued on me with the chance of a formal warning! I met up with the head at her instigation and we talked about her mostly.It was an ordeal for me. There seemed no sign that she may have contributed to my situation. My union rep is representing me at the formal meeting and had suggested if I was meeting with the head to do it before the review, I suspect he is going to be quite blunt.I am not going
    I have not gone down the road of litigation because it can get so messy and my dad's situation muddies the waters so to speak.The only thing I can do it seems is to leave for the sake of my health and it is more than likely to finish my career.

     
  12. Why am I not surprised that the ubiquitous a19pb is behind bumping up this thread. Get a life.

     
  13. Rosa - Do you have a problem with people knowing about the legislation which is likely to be of use to them in workplace bullying situations?
     
  14. ly56 -- I don't know how much you know about workplace bullying -- HAve a look at some of the links here
    <h3>Workplace Bullying - A19pb's Hotlist - July 08 - Might be useful to some.</h3>Particularly -- Once upon a time.... Is your boss a psychopath or a narcissist? and Workplace bullying - good teachers most at risk -- Finally the Kangaroo courts thread.
    Get the books 'Nasty People, THe sociopath next door and Bully in sight .. All are in my view essential in my view.
    Are you the first in your school to be targeted or is it simply your turn?

    The lack of empathy re your father's situation is typical of a person with narcissistic traits and while you naturally expect others to treat you as you would treat them, a narcissist will instead consider that others are wasting attention on you wto which they themsevles should be getting. Their behaviour goes against all social norms and once you recognise this wou will find yourself much better able to understand and deal with what will be an ongoing situation.

    HR are not interested in your welefare and will state the antithesis of the truth with authority. Expect letters to be abusive and don't get stressed by them -- It is a game they play to convince you that you are the one at fault and that you should question your own mental health. Don't even go there.
    I could go on and on, first spend some time looking at the links suggested and get the books orderOnce you have a more realistic handle on things, then you should most probably get someone in form further up the union chain. In house reps can be good but are also vulnerable to manipulation by managment and they often do not even realise it.
    THe PfHA should be understood and evidence gathered to support a future claim. THe unions should be using it or the threat of it to protect their members.
     
  15. Gardening Leaves

    Gardening Leaves New commenter

    a19pb - I recently explained to you that the law relating to the application of the PfHA in the pursuit of claims for vicarious liability has changed and sent you the link. If I can find it again, I will post it on here. It is no longer straightforward to make a claim under this Act as it is necessary to demonstrate that a criminal act has been committed. You are wrong to continue to suggest that those who experience harassment have easy recourse to justice via this legislation.
    I should know - the lawyer supporting me is the one who successfully brought the Majorewski vs Guys and St Thomas' NHS Trust case in the first place!
    ly56 - I am so sorry to read of your experience. I have been through similar and am now disabled as a consequence of the attack on me by three of my senior colleagues, seeking to find a scapegoat for their serious professional negligence. I would advise against pursuing the legal route unless you have nerves of steel and a brilliant support network of family friends and professionals around you. It is very unpleasant.
     
  16. No one else is!
     
  17. Garden L - Thanks for your input -- Re the position of the PfHA being weakened by the failure of a more recent case, it has but it is still potentially a very useful piece of legislation. As it can be used 6 years after the event. If people have the evidence then they might be able to use it, if they don't they do not have that option.
    Further, by having evidence that could potentialy be used will strengthen any case for out of court settlement as well as encouraging employers to take their duty of care for bullied employees who remain in employment either at their original school or at another site for the 6 year period.
    Further again, the behaviour of HR is designed to cause distress to employees who are being bullied to encourage them to drop cases -- the PfHA is again useful in that when they and senior managment are included in coorespondence then the senior managment can no longer plead ignorance about going ons. Once they are involved, they would be neglegent if they knew about evidence which would prove fault not being looked at. Asside from getting to court, the law remains very important because of its potential to provide remedy for employees being bullied.
    There are significant downsides for individuals acting alone as if a case fails, the court can award costs to the other party and indemenity (?) insurance to cover these costs is difficult to get. Which is why i keep saying the unions should be the ones using it. All that is required is for it to be sucessful again for it to become a real deterrent to those employers who by their failures to educate and deal correctly with complaints condone workplace bullying.
    I did some reading, the requirement to show criminal intent is not in itself a show stopper.
    I do not intend to create the impression that its easy or clear cut - it is neither. As GL has indicated, fighting bullying while under attack using any means can be very damaging and the PfHA carries more risk than say an Employment Tribunal but the threat to an employer who ignores bullying behaviour is much larger and much less quantifieable. It also has the advantage that an employee does not need to go through the abusive internal procedures which the LAs hold total control over.
     
  18. Gardening Leaves

    Gardening Leaves New commenter

    Apologies for the erroneous content of the above post. Obviously I didn't notice before hitting the 'Post' button. I have reported myself to the Abuse team and requested that they remove the post as quickly as possible. I have also apologised to a19pb.
     
  19. Gardening Leaves

    Gardening Leaves New commenter

    Moderators: many thanks for removing my earlier post.
    Re PFHA: I found the case to which I referred earlier. Details below.

    From The TimesNovember 23, 2007

    Test whether civil harassment has occurred
    Court of Appeal
    Published November 23, 2007
    Conn v Sunderland City Council
    Before Lord Justice Ward, Lord Justice Buxton and Lord Justice Gage
    Judgment November 7, 2007

    In determining whether harassment had occurred to incur civil liability under the Protection from Harassment Act 1997, the test was to ask whether the gravity of the misconduct was such as would sustain criminal liability under section 1 of that Act.

    The Court of Appeal so held when allowing the appeal of the defendant, Sunderland City Council, from Mr Recorder Kearl who, in Newcastle upon Tyne County Court on September 18, 2006, gave judgment for the claimant, William Conn, in civil proceedings under section 3 of the 1997 Act in which he sought damages from his former employer arising out of harassment which he claimed to have suffered at the hands of another employee.

    Mr Martin Porter, QC, for the council; Mr Christopher Makey for Mr Conn.

    LORD JUSTICE GAGE said that an employer could be held vicariously liable for harassment perpetrated by one employee against another since a civil remedy was available under section 3 in respect of actual or threatened breaches of section 1, which referred to a course of conduct, and for which two instances of harassment were required.

    In a particular case, the question would arise whether harassment was made out. The definition was left deliberately wide (Majrowski v Guy&rsquo;s and St Thomas&rsquo;s NHS Trust [2007] 1 AC 224, paragraph 66), although the term included alarming a person or causing distress: section 7(2).

    Concern had been noted that employers might face unmeritorious claims, but, applying dicta of Lord Nicholls of Birkenhead in Majrowski (at paragraph 30), the courts were well able to recognise the boundary between conduct which was unattractive, even unreasonable, and conduct which was oppressive and unacceptable.

    The touchstone, as to whether the facts in a particular case crossed the boundary from the regrettable to the unacceptable, was to ask whether the gravity of the misconduct was of an order which would sustain criminal liability under section 1.

    Application of that test to the facts showed that the required course of conduct had not been made out.

    Lord Justice Buxton delivered a concurring judgment and Lord Justice Ward agreed.

    Solicitors: Crutes, Newcastle upon Tyne; Thompsons, Newcastle upon Tyne.

    http://www.crutesllp.com/content/articles/Insurance%20Bulletins/November%202007.pdf
     
  20. This is still the most promissing legislation re being a serious reason why employers should be doing something about countering workplace bullying.
     

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