Majrowski (Respondent) v. Guy's and St. Thomas' NHS Trust (Appellants)
26. Nor does imposition of criminal liability only on the perpetrator of the wrong, and on a person who aids, abets, counsels or procures the harassing conduct, point to a different conclusion. Conversion, assault and battery may attract criminal liability as well as civil liability, but this does not exclude vicarious liability.
27. I turn to the practical effect of the legislation. Vicarious liability for an employee's harassment of another person, whether a fellow employee or not, will to some extent increase employers' burdens. That is clear. But, here again, this does not suffice to show Parliament intended to exclude the ordinary common law principle of vicarious liability. Parliament added harassment to the list of civil wrongs. Parliament did so because it considered the existing law provided insufficient protection for victims of harassment. The inevitable consequence of Parliament creating this new wrong of universal application is that at times an employee will commit this wrong in the course of his employment. This prompts the question: why should an employer have a special dispensation in respect of the newly-created wrong and not be liable if an employee commits this wrong in the course of his employment? The contemporary rationale of employers' vicarious liability is as applicable to this new wrong as it is to common law torts.
28. Take a case where an employee, in the course of his employment, harasses a non-employee, such as a customer of the employer. In such a case the employer would be liable if his employee had assaulted the customer. Why should this not equally be so in respect of harassment? In principle, harassment arising from a dispute between two employees stands on the same footing. If, acting in the course of his employment, one employee assaults another, the employer is liable. Why should harassment be treated differently?
29. As I see it, the matter of most concern to employers is the prospect of abuse in cases of alleged workplace harassment. Employers fear the prospect of a multiplicity of unfounded, speculative claims if they are vicariously liable for employees' harassment. Disgruntled employees or ex-employees, perhaps suffering from stress at work unrelated to harassment, perhaps bitter at being dismissed, will all too readily advance unmeritorious claims for compensation for harassment. Internal grievance procedures will not always satisfy an employee who is nursing a grievance. Although awards of damages for anxiety under the 1997 Act will normally be modest, a claimant may well pursue his present or erstwhile employer, not the alleged wrongdoer himself. The claim may be put forward for the first time years after the alleged harassment is said to have occurred. The alleged perpetrator may no longer be with the employer and may not be traceable.
30. This is a real and understandable concern. But these difficulties, and the prospect of abuse, are not sufficient reasons for excluding vicarious liability. To exclude liability on these grounds would be, to use the hackneyed phrase, to throw the baby out with the bathwater. It would mean that where serious harassment by an employee in the course of his employment has occurred, the victim - who may not be a fellow employee - would not have the right normally provided by the law to persons who suffer a wrong in that circumstance, namely, the right to have recourse to the wrongdoer's employer. The possibility of abuse is not a good reason for denying that right. Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the 'close connection' test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.
The overlap with the EC discrimination legislation
31. I turn next to a difficult part of the case. The Trust placed reliance on the overlap which exists between the harassment provisions in the 1997 Act and the harassment provisions in the series of non-discrimination regulations introduced to give effect to Directives 2000/43/EC, 2000/78/EC and 2002/73/EC. These directives were made pursuant to a new non-discrimination article, article 13, inserted into the Treaty on European Union by the Amsterdam Treaty in 1997. The Amsterdam Treaty came into force on 1 May 1999. The directives established a common framework for tackling discrimination on six specific grounds: sex, race, disability, sexual orientation, religion or belief, and age.
32. One example of the overlap will suffice. On the relevant point the several regulations are substantially to the same effect. The Race Relations Act 1976 (Amendment)) Regulations 2003 (SI 2003/1626) inserted into the Race Relations Act 1976 new provisions regarding harassment. The effect of section 4(2A), read with section 3A, is that it is unlawful for an employer to subject an employee to harassment on the grounds of race or ethnic or national origins. Harassment means, in short, engaging in unwanted conduct which has the purpose or effect of violating another person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person. Section 32, which was part of the statute as originally enacted in 1976, provides that anything done by a person in the course of his employment shall be treated as done by his employer as well as by him, subject to the 'employer's defence', as it is known colloquially. The employer's defence is that in proceedings brought against an employer in respect of an act alleged to have been done by an employee the employer has a defence where he can prove he took such steps as were reasonably practicable steps to prevent the employee from doing that act or acts of that description: section 32(3). The Trust contrasted the availability of this defence in proceedings brought under the Race Relations Act 1976 with the position under the 1997 Act if an employer is strictly liable under the 1997 Act for harassment committed by his employees in the course of their employment. The contrast means that if an employer's liability under the 1997 Act is strict, victims of racial harassment can in some circumstances bypass the defence intended to be available to employers under the amendments made to the Race Relations Act 1976. Victims can do so by taking the simple step of bringing their harassment claims under the 1997 Act. By this means victims can also bypass the strict time limits applicable to discrimination claims.
33. Had the amending regulations of 2003 been made before the 1997 Act was enacted this would have been a telling point. But they were not. In short the historical explanation of how it comes about that the employer's defence is available in harassment claims brought under the Race Relations Act 1976 is as follows.
34. The employer's defence seems to have had its origin in the Race Relations Act 1968, section 13. Employers were subject to non-discrimination obligations. But these obligations were qualified. Acts done by an employee in the course of his employment were to be treated as done by his employer, subject to the employer being able to show he had taken all reasonably practicable steps to prevent his employee doing such acts. Harassment was not mentioned in this 1968 statute. In due course the employer's defence was brought forward into the Race Relations Act 1976, section 32. That is the starting point.
35. The next step was that Council Directive 2000/43/EC made provision for putting the principle of equal treatment into effect in member states. For the purposes of this directive equal treatment means there should be no discrimination based on racial or ethnic origin. Harassment related to racial or ethnic origin is deemed to be discrimination for this purpose: article 3.
36. The final step was that, as one would expect, effect was given to this directive in this country by making appropriate amendments to the existing race discrimination legislation, namely, the Race Relations Act 1976. Harassment by an employer is deemed by the directive to be discrimination, and so harassment was treated in this country's legislation on much the same footing as discrimination. Accordingly the employer's defence was applied to acts of harassment in the same way as it already applied to acts of discrimination.
37. The legislative history regarding harassment on grounds of sex or disability is essentially similar. Amendments were made by regulations to the existing discrimination legislation: the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995. Both those statutes already included provision for the employer's defence in respect of discrimination claims. There was no discrimination legislation already in existence regarding sexual orientation, religion or belief, or age. In these cases corresponding provision was made by regulations which have to stand on their own feet.
38. Given this history, the existence of the employer's defence in the discrimination legislation, embracing harassment as it now does pursuant to the requirements of the directives, and the absence of such a defence from the (earlier) 1997 Act, does not assist materially in the interpretation of the 1997 Act. The discrimination legislation, as it existed in 1997, is too removed from harassment for the inclusion of the employer's defence in that legislation to throw any light on the interpretation of the 1997 Act. The accretion of harassment to the discrimination legislation derives from the directives and came later.
39. Although these later amendments to the discrimination legislation do not assist in the interpretation of the 1997 Act, it must be acknowledged that in the fields they cover they have produced a discordant and unsatisfactory overlap with the 1997 Act.
40. A final point should be noted on the interpretation of the 1997 Act. Sections 1 to 7 of the 1997 Act apply to England and Wales. Sections 8 to 11 make corresponding provision for Scotland. During the oral hearing of this appeal my noble and learned friend Lord Hope of Craighead drew attention to section 10. Section 10 inserts a new section, section 18B, into the Prescription and Limitation (Scotland) Act 1973. As explained by Lord Hope in his speech, the new section 18B envisages that the employer of a person responsible for harassment may be the defender in an action of harassment. In other words, section 18B appears to assume that in Scotland an employer may be vicariously liable. This is confirmatory of the conclusion expressed above regarding England and Wales. Parliament cannot have intended that in this respect the position would be different north and south of the border.
41. I would dismiss this appeal.
LORD HOPE OF CRAIGHEAD
42. The question in this case is whether an employer may be held vicariously liable in damages under section 3 of the Protection from Harassment Act 1997 for a course of conduct by one of its employees which amounts to harassment in breach of section 1 of that Act. Underlying this question there is a broader issue. This is whether an employer may be vicariously liable for a breach of a statutory duty imposed only on his employee. But the Court of Appeal held unanimously that in general an employer may be vicariously liable for a breach of statutory duty imposed on the employee which is committed in the course of his employment, and Mr Turner QC for the appellant accepted that he could not succeed on that issue in his appeal to this House. So the question which has to be decided by your Lordships has been confined to the narrow issue. This is whether conduct by an employee in breach of section 3 of the 1997 Act is conduct for which the employer may be vicariously liable.
43. Had it not been for the fact that the wording of the Act itself provides the answer, I would have found it hard to disagree with the reasons which Scott Baker LJ gave in his dissenting opinion in the Court of Appeal for answering this question in the negative. He said that the statutory duty which the Act imposed was personal in nature, that it was difficult to envisage circumstances in which it would be just and reasonable to hold an employer vicariously liable and that he did not think, viewing the statute as a whole, that it was Parliament's intention that an employee should be vicariously liable:  QB 848, para 113. It seemed to me that there were indeed powerful reasons for thinking that Parliament intended that liability in damages should be personal to the perpetrator of the harassment and that it should not be extended to his employer, if any, under the doctrine of vicarious liability. My noble and learned friend Lord Nicholls of Birkenhead, whose speech I have had the advantage of reading in draft, has subjected them all to careful scrutiny. While I respectfully agree with the conclusions that he has reached, the issue nevertheless seems to me to be finely balanced and far from easy to decide.
44. But in my opinion there is no escape from the fact that the statute when viewed as a whole includes sections 8 to 11, which provide for a new civil wrong of harassment extending only to Scotland, as well as sections 1 to 7 which extend only to England and Wales. For perfectly understandable reasons, it was to the provisions relating to England and Wales that the judges in the courts below directed their attention. Overlooked by everybody (including, it appears, A Barron, Vicarious Liability for Employees and Agents, 2006 SLT (News) 79 in his comments on this case from the Scottish viewpoint at p 82), until attention was drawn to it in the course of Mr Turner's very attractive oral argument, is a phrase which appears in section 10(1) of the 1997 Act which deals with the limitation of actions of harassment in Scotland. This subsection provides:
45. For reasons that I must now explain, it is impossible to avoid the conclusion that the effect of the phrase "or the employer or principal of such a person" in section 18B of the 1973 Act is to show that it was the intention of Parliament that it was to be open to the court, in appropriate circumstances, to find an employer vicariously liable in damages to the victim of a course of conduct amounting to harassment in breach of the relevant provision of the 1997 Act where the person responsible was an employee.
Section 18B of the 1973 Act: the statutory context
46. It is necessary first to explain how section 18B of the 1973 Act fits in to the system for the prescription of obligations and limitation of actions in Scots law. It is clear that a decision had to be taken as to how the action for harassment was to be accommodated in the Scottish system. Section 6 of the 1997 Act contains the provision about limitation that was thought appropriate for England and Wales. It provides simply that in section 11 of the Limitation Act 1980 there was to be inserted a new subsection (1A) to the effect that that section was not to apply to any action brought for damages under section 3 of the 1997 Act. The effect of that provision is that an action brought under section 3 of the 1997 in England and Wales is subject to a six year time limit. It is unnecessary for this purpose to decide whether the action is to be classified as founded on tort and or is for a sum recoverable by statute, as the time limit in both of these cases is the same: sections 2 and 9 of the 1980 Act. Mr Turner submitted that the right to claim damages in section 3 of the 1997 did not create a new tort. In my opinion it did, just as the equivalent remedy which it created for Scotland is properly classified as a delictual one. But in any event the solution that was thought appropriate for England and Wales could not be fitted in to the system which limits the time within which claims may be brought in Scotland, as Scots law does not have a six year time limit equivalent to that which is to be found in the 1980 Act.
47. The rules by which a right or a claim is extinguished after the lapse of a given time limit in Scotland are to be found in what is known as the law of prescription. Until the law was reformed by the Prescription and Limitation (Scotland) Act 1973 these rules were set out in a series of Acts of the pre-Union Scottish Parliament, of which the most important was the Prescription Act 1469 which introduced the long negative prescription of twenty years. On the one hand there is the positive prescription, by which rights to land are fortified and rendered unchallengeable by the exclusion of all objections thereto after the lapse of a given time limit. On the other there are the negative prescriptions, by which rights of various kinds are extinguished after the expiry of the relevant prescriptive period. But Scots law has also adopted from English law the concept of limitation, the effect of which is not to extinguish claims but to render them unenforceable after a stated period. This system was introduced into Scots law by the Law Reform (Limitation of Actions) (Scotland) Act 1954 for actions of damages for personal injury or death in consequence of personal injury. As its short title indicates, the 1973 Act has retained these two concepts. Part I of the Act reforms the law of prescription. Part II of the Act, as amended by section 2 of the Prescription and Limitation (Scotland) Act 1984, preserves the system of limitation of actions.
48. For present purposes all that needs to be said is that the first choice that had to be made was whether actions of harassment should be subject to the five year negative prescription or to the limitation system. Actions of damages for harassment of the kind contemplated by section 8 of the 1997 Act would have been subject to the five year negative prescription provided in Part I of the 1973 Act (see section 6 read with paragraph 1(d) of Schedule 1), had it not been for the amendment which is contained in section 10(1) of the 1997 Act. The effect of that amendment is to bring these actions within the limitation system in Part II of the 1973 Act, as amended.
49. Once it had been decided that the limitation system was to be applied to these actions the draftsman had to decide how the amendment to the 1973 Act ought to be worded. Part II of that Act, as amended, already contained three separate limitation provisions. Section 17, as substituted by section 2 of the 1984 Act, applies to actions in respect of personal injuries not resulting in death. Section 18, as substituted by section 2 of the 1984 Act, applies to actions where death has resulted from personal injuries. Section 18A, which was inserted by section 12(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, introduced a three year limitation on actions for defamation. The three year period referred to in section 18A is not capable of being extended, except to allow for any time during which the person alleged to have been defamed was under legal disability by reason of nonage or unsoundness of mind. But the three year periods referred to in sections 17 and 18 are capable of being extended so that the period runs from the date when the pursuer was, or should have been, aware of certain facts. The draftsman could have chosen an absolute limit of three years, subject only to an extension on the ground of legal disability, following the precedent set by section 18A. But he chose instead to follow the precedents set by sections 17 and 18 and to allow for a more generous extension of the three year period of the kind for which they provide.
50. Among the facts which are relevant to the question whether the three year period in sections 17 and 18 of the 1973 Act should be extended are the identity of the person against whom the action should be brought. Section 17(2)(b)(iii) and section 18(2)(b)(ii) use the same formula to describe this fact. It is in these terms:
The new section 18B which section 10(1) of the 1997 Act inserts into Part II of the 1973 Act for actions of harassment adopts, with modifications, the same formula in subsection (2)(b). It provides for it in these terms:
Does this formula contemplate vicarious liability?
51. There is no doubt that the purpose of the formula which is to be found in sections 17(2)(b)(iii) and 18(2)(b)(ii) of the 1973 Act was to accommodate claims based on the employer's vicarious liability by permitting an extension of the limitation period to the date when the pursuer became aware, or it would have been reasonably practicable for him to become aware, of the identity of the employer of the person to whose act or omission the injuries were attributable. As Lord President Cooper explained in Matuszczyk v National Coal Board, 1953 SC 8, 17-18, a case based on the principle of vicarious liability which would have been hopelessly irrelevant so long as the defence of common employment was available had by then become a relevant one:
52. There is no doubt that the principle of vicarious liability is available where the employee is in breach of a duty owed by him to his fellow employee at common law. That fact provides a sufficient explanation for the use of the formula in sections 17(2)(b)(iii) and 18(2)(b)(ii) of the 1973 Act. The relief which is to be found in these provisions against a strict application of the three year limitation period would have been incomplete without it. The use of the same formula in section 18B(2)(b) for actions of harassment seems to lead inevitably to the conclusion that it was the intention that the principle of vicarious liability should be available in actions of harassment also. That is the conclusion which David Johnston draws in Prescription and Limitation (1999), para 11.16 where in his analysis of section 18B he writes:
53. The remedy which Parliament has provided in cases of harassment is, of course, a statutory remedy. Nevertheless it recognised in section 10 of the 1997 Act that in harassment cases, as in a case of personal injury caused by a breach of the employee's duty at common law, the employer may be vicariously liable for conduct of the employee that amounts to harassment under the statute. At first sight this might seem surprising, in view of the paucity of authority to show that the doctrine of vicarious liability applies to duties laid on the employee by statute. Reported examples of cases where the principle of vicarious liability has been applied, without express statutory authority, to a breach of a statutory duty laid on the employee personally are hard to find. Statutory provisions providing for the safety, health and welfare of employees in the work place normally include provisions which impose a direct duty on the employer in such circumstances, of which regulation 32(2) of the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 (SI 1976/1019) is an example: see MacMillan v Wimpey Offshore Engineers and Constructors Ltd, 1991 SLT 515. It provides:
A provision to the same general effect was included, "for the removal of doubts", in section 159 of the Mines and Quarries Act 1954.
54. Questions as to whether the employer was vicariously liable had however been raised under the legislation relating to coal mines prior to the enactment of the 1954 Act. Sections 75 and 102(8) of the Coal Mines Act 1911 had the effect of absolving the owner of the mine from direct responsibility for any contravention or non-compliance with a provision of the Act if he could prove that he had taken all reasonable precautions to prevent it or that it was not reasonably practicable to avoid or prevent the breach. This left open the possibility that the only route by which a remedy could be obtained against the employer for breach of a statutory duty laid on the employee was by applying the strict doctrine of vicarious liability.