| TORT — Cause of action — Harassment — Proper construction of term “harassment” — Protection from Harassment Act 1997, ss 1, 2, 3
Conn v Sunderland City Council
CA: Ward, Buxton and Gage LJJ: 7 November 2007
In determining whether “harassment” had occurred for the purposes of civil proceedings under s 3 of the Protection from Harassment Act 1997 the touchstone was to ask whether the gravity of the misconduct was of an order which would sustain criminal liability under s 2 of the Act.
The Court of Appeal so held when allowing the appeal of the defendant, Sunderland City Council, from a decision of Mr Recorder Kearl made in the Newcastle upon Tyne County Court on 18 September 2006, giving judgment for the claimant, William Conn, in proceedings by which he sought damages from his former employer arising out of harassment which he claimed to have suffered at the hands of another employee.
GAGE LJ said that it was established that an employer could be held vicariously liable for acts of harassment contrary to the 1997 Act perpetrated by one employee against another since a civil remedy was available pursuant to s 3 of the Act in respect of actual or threatened breaches of s 1 of the Act, which referred to a “course of conduct”, and for which two instances of harassment were required. In a particular case, the question would arise whether “harassment” was made out. The definition was left “deliberately wide”, per Baroness Hale of Richmond in Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224, para 66, although the term included alarming a person or causing distress: s 7(2). Concern had been noted that employers might face unmeritorious claims, but, applying dicta of Lord Nicholls of Birkenhead in Majrowski’s case, para 30, the courts were well able to recognise the boundary between conduct which was unattractive, even unreasonable, and conduct which was oppressive and unacceptable. The touchstone, as to whether the facts in a particular case crossed the boundary from the regrettable to the unacceptable, was to ask whether the gravity of the misconduct was of an order which would sustain criminal liability under s 2 of the Act. Application of that test to the facts showed that the required course of conduct had not been made out.
BUXTON LJ gave a concurring judgment and WARD LJ agreed with both judgments.
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