Deterring Harassment at Common Law

Abstract

Green v DB Group Services (UK) Ltd [2006] IRLR 764 (QBD) In Green the employer was held to be liable following acts of harassment committed against the claimant. The employer was both personally at fault (it was aware of the situation and should have intervened) and vicariously liable for the behaviour of its employees. At first glance the decision seems unexceptional. Certainly, in the wake of Waters v Comr of Police [2000] 1 WLR 1607 and Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695, it comes as no surprise that the employer's responsibility to secure a non-hostile working environment should be enforced in this way. However, on closer inspection it becomes apparent that the employer was not held vicariously liable (as in Majrowski itself) for a statutory tort committed by the employee but for common law liabilities. It was assumed (as it had been in the earlier High Court decision in Barlow v Borough of Broxbourne [2003] EWHC 50) that employees owe one another a duty of care not to inflict psychiatric harm by harassment. This assumption does not appear to have been disputed. Indeed the very same assumption was also made in the more recent case of Clark v Chief Constable of Essex ([2006] EWHC 2290) where the employer was held vicariously liable, on the basis of negligence, for the activities of employees participating in bullying. Green, following Barlow, suggests that one then determines whether the duty in question has been breached by asking ‘did the person or persons involved in the victimisation or bullying know, or ought they reasonably to have known, that their conduct might cause the claimant harm … [and] could they, by the exercise of reasonable care, have taken steps which would have avoided that harm’. The imposition of such a duty on an employee may seem wholly apposite given the potential consequences for the victim of acts such as bullying, harassment and victimisation. However, a fundamental difficulty arises because it is not at all clear whether that imposition accords with precedent.