www.workrep.co.uk

---

• The Court of Appeal believes that only exceptionally will the 1997 Harassment Act succeed following stress at work.
• Yet the Court of Appeal would seem to undermine this to some extent by also finding that the Recorder in Brighton CC had set the threshold of 'oppressive and unacceptable behaviour' too high
• The presence of malice makes satisfaction of the "oppressive and unacceptable" test easier to achieve.
• The Employment Tribunal is the place for the majority of cases of 'high-handed and discriminatory conduct'.

The Recorder's reasons were that there is a very high threshold to reach before an allegation of harassment under Section 1(1) of the Protection from Harassment Act 1997 can be proved. The threshold is one that would sustain criminal liability (Majrowski).

The Recorder quoted decisions of the Court of Appeal and the House of Lords in Majrowski v Guy's and St Thomas' NHS Trust [2005] EWCA Civ 251, [2006] UKHL 34, [2007] 1 AC 224 and Conn v Council and City of Sunderland [2007] EWCA Civ 1492.

Baroness Hale said that the line falls between that of "ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour." Lord Nicholls' "oppressive and unacceptable" conduct was adopted in Allen v London Borough of Southwark [2008] EWCA Civ 1478. In Ferguson v British Gas Trading Ltd [2009] EWCA Civ the CoA held that "the course of conduct must be grave before the offence or tort of harassment is proved."

All the above legal precedent was fully understood and taken account of by Recorder Grainger. His mistake according to the CoA was not in understanding the law but rather in his misunderstanding the gravity of the harassment that took place and of its effects on the victim.

Despite a campaign of harrassment including numerous episodes of humiliating and embarassing the victim and of Ms Lavy's canvassing of private information from colleagues of Ms Veakin, the Recorder did not think "that any sensible prosecuting authority would pursue these allegations criminally; or, even if a prosecution were somehow brought, say perhaps by the claimant herself in a private prosecution, I cannot see that any prosecution would suffer any fate other than to be brought to an early end as an abuse of process."

The Court of Appeal believed that, "the account of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust woman to a state of clinical depression is not simply an account of "unattractive" and "unreasonable" conduct (in Lord Nicholl's words) or "the ordinary banter and badinage of life" (in Baroness Hale's words). It self-evidently crosses the line into conduct which is "oppressive and unreasonable".

The Court of Appeal decided that the Recorder had undervalued the evidence of harassment, that, "the proven conduct would be sufficient to establish criminal liability" and not that "in a criminal court, the proceedings would properly be stayed as an abuse of process". The Court of Appeal overturned the verdict of Brighton County Court.

The Court of Appeal further said that the presence of malice makes satisfaction of the "oppressive and unacceptable" test easier to achieve.

Hatton v Sutherland [2002] EWCA Civ 76, [2002] was referred to whereby it became more difficult for an employee to prove a negligence action due to work stress and employees have tried to avoid this by bringing cases based on harassment and the statutory tort.

The Court of Appeal believes this case is exceptional and that work based stress claims will not often succeed using the 1997 Harassment Act intended to frustrate stalking.

The Court of Appeal does seem on the one hand to be criticising the Recorder for having taken an overly strict view of the level of threshold needed to prove criminal liability, and on the other hand by saying this case is exceptional, to be hoping to stop the 'floodgates' opening.

Will this case really be exceptional? Is Ms Lavy's behaviour so rare so as to make other successful harassment cases 'exceptional'? On balance the Court of Appeal's judgment would seem to give hope to those suffering stress and harassment at work.