Majrowski v Guy's and St Thomas' NHS Trust

The House of Lords held that an employer may be vicariously liable for harassment committed by an employee in the course of employment under the Protection from Harassment Act 1997. The general common law principle of vicarious liability applies to breaches of statutory obligations which give rise to civil liability unless the statute expressly or impliedly excludes such liability. The claimant's cause of action was founded on section 3 of the 1997 Act and the court concluded that nothing in the Act displaces the ordinary rule of vicarious liability.

The court applied the familiar requirement that the wrongful conduct be committed "in the course of employment" and noted the "close connection" test developed in previous authorities. The insertion by section 10 of the 1997 Act of a new limitation provision (section 18B) in the Prescription and Limitation (Scotland) Act 1973, which expressly contemplates liability of "the employer or principal", reinforced the conclusion that Parliament intended vicarious liability to be available.

This is an appeal by the Trust against the Court of Appeal's decision permitting the respondent's claim for damages under the Protection from Harassment Act 1997 to proceed against the Trust on the basis of vicarious liability. The respondent, Mr Majrowski, alleged that his departmental manager subjected him to a course of conduct amounting to harassment while both were employed by the Trust. He sued the Trust under section 3 of the 1997 Act for damages for anxiety and consequential loss, alleging that the manager was acting in the course of her employment. He did not pursue a claim against the manager personally.

The case reached the House of Lords after the claim was struck out at first instance by Judge Collins in the Central London County Court (24 February 2004) on the basis that the 1997 Act was not intended to create an additional tier of employer liability; the Court of Appeal ([2005] EWCA Civ 251) by majority allowed the appeal and required the matter to proceed to trial. The Trust appealed to the House of Lords.

• Nature of relief sought: Damages and other civil relief under section 3 of the Protection from Harassment Act 1997 for distress and consequential losses.
• Issues framed: (i) whether vicarious liability extends to breaches of statutory duties such as harassment under the 1997 Act; (ii) whether the 1997 Act or its practical effect excludes vicarious liability; and (iii) the relevance of overlapping discrimination legislation and of the Scottish limitation provision (section 18B) inserted by section 10 of the 1997 Act.
• Court's reasoning: The House of Lords reaffirmed that vicarious liability is a policy-driven common law rule applicable to wrongs committed in the course of employment, including breaches of statutory duties, unless displaced by statute. The court rejected the Trust's policy and practical arguments that Parliament could not have intended employers to be liable. Crucially, section 10(1) of the 1997 Act, which inserts section 18B into the Prescription and Limitation (Scotland) Act 1973 and refers expressly to "the employer or principal of such a person", indicated that Parliament contemplated employer liability. The court therefore concluded the 1997 Act does not impliedly exclude vicarious liability and allowed the respondent's claim to proceed to trial.

The court noted related issues arising from overlap with discrimination legislation and emphasised application of the "close connection" test when determining whether particular conduct falls within the course of employment.

Appeal dismissed. The House of Lords held that employers may be vicariously liable for harassment committed by employees in the course of their employment under the Protection from Harassment Act 1997. The general principle that vicarious liability applies to statutory breaches stands unless the statute expressly or impliedly excludes it. The wording of section 10(1) of the 1997 Act (inserting section 18B into the Prescription and Limitation (Scotland) Act 1973) demonstrated that Parliament contemplated employer liability, and policy objections were insufficient to displace the ordinary rule.

Central London County Court: claim struck out by Judge Collins CBE (24 February 2004). Court of Appeal: appeal allowed, case remitted for trial ([2005] EWCA Civ 251). House of Lords: appeal dismissed ([2006] UKHL 34).