Employment Alert No. 100: Employer's liability for an employee's breach of the Protection from Harassment Act 1997
June 8, 2005
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Introduction |
An employer may be liable for a breach by one of its employees of the Protection from Harassment Act 1997 (the “Act”).
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Background |
The Act prohibits a person from pursuing a course of conduct which he knows, or ought to know, amounts to harassment of another person. The Act was originally introduced to provide protection to individuals against stalking. Since being introduced the legislation has been used to protect against other conduct resulting in harassment of individuals. For example, the Act could apply to the harassment by an employee of fellow workers and third parties (including contractors and customers) with whom the employee has regular contact during the course of his/her employment duties.
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What has the court of appeal decided? |
The Court of Appeal decided that, as a matter of general principle, an employer (although free from blame itself) can be vicariously liable for the breach by one of its employees of a duty laid down by statute. This includes liability for harassment as set out in the Act.
Whether an employer is vicariously liable for harassment under the Act will depend on whether it is just and reasonable for the employer to be liable for the employee’s actions and whether there was a sufficient connection between the harassment and the nature of the harasser’s employment duties.
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What does this mean for employers? |
Employers may already be liable for harassment on discriminatory grounds under existing employment legislation for example, harassment on the basis of race or sexual orientation. It is now possible for employers to be liable for harassment for non-discriminatory reasons if the victim can show that the perpetrator undertook a “course of conduct” resulting in harassment. A single incident of harassment will be insufficient to establish liability under the Act.
This decision opens up the possibility of claims against an employer, not just from its own employees, but also outsiders, including contractors and members of the public, if the employee's work brings him/her into regular contact with the victim. Unlike the anti-discrimination legislation, the Act does not contain a defence to vicarious liability if the employer can show that it took measures to avoid the type of harassment in question.
However, employers are expected to be alert to discrimination and exploitation, including harassment. Companies should design and implement good working practices to guard against potential harassment of its employees. Such practices should include anti-harassment policies and training for relevant managers and HR staff. If employers fail to implement such practices or, if harassment occurs despite them, the Courts may consider it just and equitable to hold the employer liable for an employee’s conduct resulting in harassment.
