The hassle of halting harassment

Brokers, as employers, and their employer clients, have become familiar with discrimination law and the claims that can arise in relation to harassment in the workplace. However, a new route for claims for damages from alleged workplace harassment is emerging through the Protection from Harassment Act.

In a recent judgement, the House of Lords accepted that an employer can be vicariously liable for a breach of the Act by its employee and, therefore, liable for the damages awarded. If the employer is vicariously liable then it is irrelevant what steps he had taken to try to ensure that no such behaviour occurred.

Several issues cause concern.

The limitation period for a claim is six years, not the three months applicable to the Employment Tribunal, or the three years applicable for a personal injury claim. This means an employee will be able to bring a claim years after the events occurred, when it will be very difficult to conduct a proper investigation.

Where harassment or bullying has gone unchecked, employers have always been vulnerable to a claim for negligence if it was "reasonably foreseeable" that such workplace behaviour would result in a breakdown in the victim's health (a "personal injury"). However, forseeability is not relevant to a claim. Thus employers, who have no idea that an employee feels that they are being made ill as a result of harassment by another employee, may still be liable to pay them damages for the resultant stress or, worse still, psychiatric injury.

The Act allows an individual to recover damages for alarm or distress, without the need to prove psychiatric injury. This affords employees a new opportunity to make a claim that may not be covered by a standard employers' liability insurance policy. While the level of damages where there was no injury may be low, a claim under the Act is not limited to alarm or distress and can also be relied on where a psychiatric injury has occurred.

A claimant can name both the employer and the alleged harasser. Issues then arise as to how the employer can support both employees, as appropriate, and avoid a claim being brought.

Given this new development, employers should urgently review their policies and procedures on harassment and bullying. They must ensure that any suggestions or perceptions of harassment and bullying, as well as actual complaints, are fully investigated and documented at the time. It is also vital that they monitor workplace behaviours and ensure employees feel able to raise any issues they have with their colleagues and line managers, in confidence. Comprehensive training on supporting good practice and tackling problems and the provision of counselling should also be available.