Banks v Ablex Ltd

Statutory harassment under the Protection from Harassment Act 1997 requires intentional conduct on at least two occasions directed at the same person. The conduct must amount to harassment, and the alleged harasser’s knowledge is assessed objectively. A single incident cannot establish the statutory tort.

An employer is not liable in negligence for workplace psychiatric injury unless significant injury to the particular employee was reasonably foreseeable. In the absence of a known vulnerability or other warning signs, an employer may ordinarily assume that an employee can withstand the normal pressures of the work.

The claimant appealed from Judge Mitchell’s dismissal of her claim for damages arising from workplace conduct by a fellow employee, Briggs. She had left employment and was later diagnosed with a moderate depressive disorder.

The County Court rejected an allegation that Briggs had assaulted her. After amended pleadings and a further hearing, it also rejected claims based on intentional infliction of injury, statutory harassment under the Protection from Harassment Act 1997, and the employer’s primary common-law duty to protect her from psychiatric injury.

The appeal concerned whether the evidence established a course of harassment and whether the employer knew or ought to have foreseen a risk of significant psychiatric injury to this claimant.

Appeal dismissed unanimously. Kennedy LJ gave the judgment, with which Longmore LJ and Maurice Kay LJ agreed.

1. The statutory harassment claim failed. Under sections 1 and 7 of the Protection from Harassment Act 1997, a course of conduct must comprise at least two occasions and must be directed at the same person. The conduct before 14 October 1998 did not amount to harassment of the claimant. The events on 14 October could not alone constitute the required course of conduct. The court also accepted that the statutory knowledge requirement is objective and that the alleged harasser need not intend the consequences of alarm or distress.

2. The court rejected the challenge to the judge’s factual assessment. The evidence supported his finding that, before 14 October, the claimant and Briggs had exchanged words but had not had an inimical relationship or a course of conduct directed at harassing her. Accordingly, no underlying statutory tort was established. It was unnecessary to determine whether the employer would have been vicariously liable for harassment by Briggs.

3. The primary negligence claim also failed. Liability required proof that the employer knew, or ought reasonably to have foreseen, that Briggs might behave towards this particular claimant so as to cause significant psychiatric injury. There was no evidence of unusual vulnerability. The claimant was known as a strong and forthright employee, and the earlier warning given to Briggs gave the employer no reason to anticipate conduct endangering her mental health.

4. The court further held that the agreed procedure by which the judge heard the witnesses and made preliminary findings could not properly be criticised on appeal. It observed, obiter, that psychiatric reports should address facts as found by the court.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal from the County Court.
• Telford County Court — Judge Mitchell rejected the assault allegation in preliminary findings and subsequently dismissed the remaining claims for intentional infliction of injury, statutory harassment, and breach of the employer’s primary duty.