Majrowski v Guy's & St Thomas's NHS Trust

An employer may be vicariously liable for a statutory tort committed by an employee, although the statute imposes the duty only on the employee. Liability remains subject to the statute’s proper construction and the ordinary principles of vicarious liability.

The Protection from Harassment Act 1997 does not exclude an employer’s civil liability for harassment committed by an employee. The court must ask whether the wrong was sufficiently closely connected with the employment, or was a risk reasonably incidental to it, so that liability is just and reasonable. Mere opportunity to harass at work is insufficient. Harassment by a manager while exercising authority over a subordinate may satisfy the test.

The appellant employee alleged that his departmental manager bullied, intimidated and harassed him while acting in the course of her employment by the respondent NHS trust. He claimed damages from the trust under section 3 of the Protection from Harassment Act 1997 on the basis of vicarious liability.

His Honour Judge Collins struck out the claim under CPR Part 3.4(2), holding that the Act did not permit an employer to be held vicariously liable for an employee’s harassment. He nevertheless granted permission to appeal because the point required authoritative determination.

The appeal raised whether an employer may generally be vicariously liable for a statutory duty imposed only on an employee, and whether the 1997 Act permits that liability for harassment contrary to section 1.

1. By a majority, the appeal was allowed. Auld and May LJJ held that the Protection from Harassment Act 1997 did not exclude an employer’s vicarious civil liability for an employee’s harassment. The strike-out was set aside and the claim remitted for case management and determination on the evidence.

2. Per Auld LJ, with May LJ agreeing, vicarious liability is not confined to common law torts. An employer may generally be liable for a statutory wrong committed by an employee, although the duty is imposed personally on the employee. The statutory context may expressly or impliedly exclude that result. Otherwise, liability depends upon a sufficiently close connection between the wrong and the employment, or upon the wrong being a risk reasonably incidental to the employer’s undertaking, such that imposing liability is just and reasonable.

3. The civil remedy under section 3 is distinct from criminal liability under section 2. An employer may be civilly liable for an employee’s unauthorised criminal conduct even where the employer could not be convicted of the offence. The fact that the statutory obligation takes the form of a prohibition rather than a positive duty makes no material difference.

4. The Act’s original concern with stalking did not confine its operation to stalking. It protects individuals against a course of conduct amounting to harassment in a range of contexts, including the workplace. Its silence about vicarious liability, and the express treatment of employers in discrimination statutes, did not establish an intention to exclude ordinary common law principles in proceedings before the courts.

5. May LJ emphasised two controls. The conduct must objectively amount to harassment: it must be targeted, oppressive and unreasonable, and calculated in an objective sense to cause alarm or distress. Reasonable managerial criticism does not become harassment merely because it causes distress. There must also be more than the opportunity supplied by the workplace. A personal dispute continued at work would ordinarily lack the required connection, whereas harassment by a manager in the course of managing a subordinate may qualify.

6. Scott Baker LJ dissented on the narrow issue. He considered the statutory duty personal to the perpetrator and concluded that Parliament did not intend indirectly to impose strict liability on employers, particularly given the lower damages threshold, six-year limitation period and absence of a statutory employer defence.

1. Court of Appeal (Civil Division): By a majority, allowed the appeal in [2005] EWCA Civ 251, set aside the order striking out the claim and remitted the proceedings to the Central London County Court.
2. Central London County Court: His Honour Judge Collins CBE struck out the statement of claim under CPR Part 3.4(2), entered judgment for the trust and granted permission to appeal.