Veakins v Kier Islington Ltd

Conduct amounts to statutory harassment where it crosses the boundary from ordinary irritations, unattractive or unreasonable behaviour into conduct that is oppressive and unacceptable. It must be sufficiently grave to sustain criminal liability, but the decisive inquiry is the character of the conduct. It is not whether a prosecuting authority would choose to prosecute or whether criminal proceedings would probably succeed.

Malice is not an element of harassment, although its presence may make the required threshold easier to establish. The Protection from Harassment Act 1979 is capable of applying in the workplace, but only exceptional workplace conduct will ordinarily meet this high threshold.

The appellant, an electrician, claimed damages for harassment arising from a supervisor’s conduct during a two-month period of workplace conflict. Her evidence was substantially unchallenged. It described repeated victimisation, humiliation, demoralisation and conduct which caused clinical depression.

At Brighton County Court, Recorder Grainger accepted the essential facts but dismissed the claim. He reasoned that no sensible prosecuting authority would pursue the allegations and that any prosecution would be stayed as an abuse of process.

The appellant appealed. The central issue was whether the Recorder had applied the correct threshold for harassment and, if not, whether the accepted evidence established liability.

1. Appeal allowed. Maurice Kay LJ, with whom Rimer and Waller LJJ agreed, substituted a finding of liability and remitted the case to Brighton County Court for an assessment of damages.

2. The governing threshold under the Protection from Harassment Act 1979 was that stated in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34. Courts must distinguish ordinary irritations, unattractive conduct and unreasonable conduct from conduct which is oppressive and unacceptable. The conduct must be sufficiently serious to sustain criminal liability, as also illustrated by Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46.

3. The Recorder erred by treating the likely stance of a prosecuting authority, and the prospects of a criminal case, as the primary inquiry. Those matters did not replace an evaluation of the proven conduct against the statutory threshold. The question was whether the conduct was of an order capable of sustaining criminal liability.

4. On the accepted and uncontradicted evidence, the supervisor’s repeated victimisation, humiliating treatment, efforts to obtain private information, and dismissal of the appellant’s written complaint went well beyond workplace friction. The conduct reduced a previously robust employee to clinical depression. It was oppressive and unacceptable and was sufficient to establish civil and criminal liability for harassment.

5. Malice was not an ingredient of the tort, since liability may arise where the perpetrator ought to know that the conduct is harassment. However, malice may make the threshold easier to satisfy. The evidence was capable of showing a deliberate attempt to force an employee from her job because of personal dislike.

6. The Act contains no exclusion for workplace harassment. The court nevertheless stressed that this was an extraordinary and unusually one-sided case. Most stress-at-work disputes and high-handed or discriminatory employment conduct would not meet the harassment threshold and would more appropriately be addressed in the Employment Tribunal.

• Court of Appeal (Civil Division) — allowed the appeal, substituted a finding of liability for harassment, and remitted damages for assessment: [2009] EWCA Civ 1288 .
• Brighton County Court — Recorder Grainger dismissed the appellant’s harassment claim despite accepting the essential factual allegations.