Conn v City of Sunderland

A civil claim under the Protection from Harassment Act 1997 requires a course of conduct of sufficient gravity to sustain criminal liability. The statutory concept of harassment is wider than any particular form of conduct, and workplace context may matter. It does not, however, extend to bad-tempered, unpleasant or unreasonable conduct which falls short of conduct that is oppressive and unacceptable. A course of conduct requires at least two qualifying occasions. The objective reasonable-person assessment cannot be affected by a vulnerability of the claimant that was unknown to the alleged harasser.

The claimant, a long-serving council paver, alleged that his site foreman had harassed him on five occasions in 2000. The Recorder at Newcastle upon Tyne County Court found two incidents proved and held that they constituted harassment. He awarded £2,000 damages and £100 interest under section 3 of the Protection from Harassment Act 1997, while dismissing the negligence claim.

The council appealed. It accepted the Recorder’s findings of fact but contended that the two incidents did not meet the statutory threshold for harassment. The central issue was whether the conduct constituted a qualifying course of conduct for which a civil remedy was available.

Appeal allowed unanimously. The court set aside the Recorder’s order and entered judgment dismissing the claimant’s claim for damages.

1. Gage LJ held that the civil remedy under sections 1 and 3 of the Protection from Harassment Act 1997 is available only for conduct amounting to the criminal offence created by section 2. Applying the guidance in Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34, the conduct must be sufficiently grave to cross the boundary from unattractive or unreasonable conduct into conduct that is oppressive and unacceptable. The relevant touchstone is whether it is serious enough to justify criminal sanction.

2. Context may affect the assessment, but the first incident did not meet that threshold. The foreman’s bad-tempered demand that three employees identify colleagues leaving early, coupled with a threat to smash cabin windows and involve personnel, was unpleasant but did not contain a physical threat to the claimant. It was addressed to all three men, two of whom were not troubled by it, and fell well below conduct warranting criminal sanction.

3. Although Gage LJ was prepared, for the purpose of the appeal, to accept that the later personal threat might have crossed the threshold, one qualifying incident could not constitute the required course of conduct. Buxton LJ agreed that the Recorder had failed to apply the criminal-liability threshold and considered it unnecessary to determine the later incident.

4. Buxton LJ also held that the claimant’s particular fragility, being unknown to the foreman, could not affect what the alleged harasser ought objectively to have known. Ward LJ agreed with both judgments and held that the first incident fell far short of harassment.

• Court of Appeal (Civil Division) — appeal allowed; the Recorder’s order was set aside and the claimant’s damages claim was dismissed: [2007] EWCA Civ 1492.
• Newcastle upon Tyne County Court (Recorder Kearl QC) — on 18 September 2006, judgment was entered for the claimant for harassment under the Protection from Harassment Act 1997; the negligence claim was dismissed.