Majrowski (Respondent) v. Guy's and St. Thomas' NHS Trust (Appellants)

An employer may be vicariously liable for a statutory wrong committed by an employee in the course of employment. The ordinary rule applies unless the statute expressly or impliedly displaces it. The employee’s conduct must be so closely connected with authorised acts that it may fairly and properly be regarded as occurring in the course of employment.

Section 3 of the Protection from Harassment Act 1997 creates a civil wrong for which damages are available. The Act does not exclude vicarious liability. Its Scottish limitation provisions confirm that Parliament contemplated claims against an employer or principal. Workplace conduct must nevertheless cross the boundary into oppressive and unacceptable behaviour of a gravity capable of sustaining criminal liability for harassment.

The respondent was employed by an NHS trust and alleged that his departmental manager had bullied, intimidated and harassed him, partly because of his sexual orientation. An internal investigation found that harassment had occurred. Following his later dismissal for unrelated reasons, he claimed damages against the trust under section 3 of the Protection from Harassment Act 1997, relying exclusively on its alleged vicarious liability for the manager’s conduct.

The Central London County Court struck out the claim. The Court of Appeal, by a majority, allowed the respondent’s appeal and held that the claim should proceed to trial: [2005] EWCA Civ 251; [2005] QB 848. In Majrowski v Guy’s and St Thomas’ NHS Trust, the central issue before the House was whether an employer may be vicariously liable in damages for harassment committed by an employee in the course of employment.

1. Appeal dismissed unanimously. Lord Nicholls delivered the leading speech. Lords Hope, Carswell and Brown expressly accepted his general proposition that vicarious liability may extend to a breach of a statutory obligation sounding in damages. The ordinary rule applies unless the statute expressly or impliedly excludes it.

2. Per Lord Nicholls, modern vicarious liability imputes the employee’s wrong to the employer. Its policy rationale applies to equitable and statutory wrongs as well as common law torts. Liability still requires the employee’s conduct to satisfy the close connection test: it must be so closely connected with authorised acts that it may fairly and properly be regarded as occurring in the course of employment.

3. Per Lord Nicholls, section 3 of the Protection from Harassment Act 1997 creates a civil wrong. A victim is entitled to recover loss caused by the wrong, subject to ordinary principles such as causation and mitigation. The words “may be awarded” in section 3(2) do not make damages wholly discretionary. They clarify and extend the recoverable heads of loss, including anxiety.

4. The Act’s language and practical operation do not displace vicarious liability. The personal criminal liability imposed by section 2 does not preclude an employer’s civil liability. Nor do the risk of increased claims, the six-year limitation period or the absence of a statutory employer’s defence justify excluding the ordinary common law rule.

5. Lord Hope treated section 10 as decisive. It inserted section 18B into the Prescription and Limitation (Scotland) Act 1973. Section 18B postpones limitation by reference to awareness that the defender was the person responsible for harassment or that person’s employer or principal. The formula was derived from provisions accommodating vicarious liability. It could not be explained merely as a reference to an employer’s personal or secondary liability.

6. Baroness Hale, Lord Carswell and Lord Brown agreed that the Scottish provision demonstrated Parliament’s intention. There was no indication that the substantive scope of liability was intended to differ between Scotland and England and Wales. The later discrimination legislation and its statutory employer’s defence did not determine the construction of the earlier 1997 Act, although the resulting overlap was unsatisfactory.

7. Per Lord Nicholls, courts should identify unmeritorious workplace claims at an early stage. Ordinary irritations, unreasonable behaviour and a measure of upset are insufficient. Harassment requires oppressive and unacceptable misconduct of a gravity capable of sustaining criminal liability under section 2. Whether the alleged conduct met that standard and the close connection test remained for trial.

• House of Lords: Unanimously dismissed the trust’s appeal and upheld the decision that the statutory harassment claim should proceed to trial: [2006] UKHL 34.
• Court of Appeal: By a majority of two to one, allowed the claimant’s appeal against the strike-out and permitted the case to proceed to trial. Scott Baker LJ dissented in part: [2005] EWCA Civ 251; [2005] QB 848.
• Central London County Court: Judge Collins CBE struck out the proceedings on 24 February 2004, holding that the Protection from Harassment Act 1997 was not intended to create an additional level of employment liability.