HARASSMENT

Banks v Ablex Ltd: [2005] EWCA Civ 173

CA: Kennedy, Longmore and Maurice Kay LJJ: 25 February 2005

The claimant was employed by the defendants from 1993 as a shift supervisor at their factory. On 14 October 1998 a fellow employee, B, shouted and swore at the claimant and she complained to her superior. The following day the claimant left her employment and was subsequently found to be suffering from a depressive disorder rendering her unfit for work. She brought a claim against the defendants alleging, inter alia, that the conduct of B constituted the statutory tort of harassment under section 1 of the Protection from Harassment Act 1997 for which the defendants were vicariously liable and that, in relation to B's conduct, the defendants were also in breach of the common law duty of care owed to the claimant as their employee. The claimant contended that from March 1998 B had been aggressive and abusive towards her on numerous occasions, and that B's conduct and the defendants' failure to prevent it was a cause of her illness and loss of employment. The defendants contended that after they had on 16 March 1998 given an oral warning to B arising out of his swearing and threatening behaviour to another employee there had been no further complaints about him. The judge dismissed the claims, holding that there was no evidence that B's outbursts had been targeted at the claimant and that the defendants had had no knowledge that conduct on the part of B might cause either physical or mental harm to the claimant.

The claimant appealed.

The Court of Appeal held:
(1) While section 1 of the Protection from Harassment Act 1997 prohibited conduct whereby harassment was caused by abusive language, by virtue of section 7(3), the conduct must have been directed at the same victim on at least two occasions. Accordingly, the conduct of B on 14 October 1998 could not by itself satisfy the requirements of the statutory tort, nor was the earlier incident of threatening behaviour towards another employee relevant. Since there was no evidence that anything else had occurred that could properly be described as harassment of the claimant by B, the statutory tort was not proved.
(2) It was a pre-requisite to liability in negligence on the part of the defendants as the claimant's employer that they foresaw or ought to have foreseen the particular type of injury suffered by the claimant as a possible consequence of the conduct complained of, but there was no evidence to suggest that prior to 14 October 1998 the defendants knew or ought to have known that the claimant, who was regarded as a strong forthright supervisor, was in any way vulnerable and might suffer significant injury to her mental health as a possible consequence of aggressive behaviour by B.

The appeal was dismissed.

Appearances: Allan Gore QC and Richard Davison (Lanyon Bowdler, Shrewsbury) for the claimant; James Dingemans QC and John Norman (Plexus Law) for the defendants.