Model Guidance

NHS Employers' guidance covers issues ranging from an identification of behaviours that constitute bullying and harassment to current support, policy and a suggested procedure for dealing with bullying and harassment claims. In addition, the publication also offers advice on the investigation procedure for a complaint of bullying and/or harassment.

• Bullying and harassment - Employers' vicarious liability
• Majrowski v Guy's St Thomas' NHS Trust
• Green v DB Group Services (UK) Ltd

Bullying and harassment - Employers' vicarious liability

Two recent court cases could have very serious implications for all NHS Trusts. The landmark judgement in the case of Majrowski v Guy's St Thomas NHS Trust set the precedent that employers can now be held vicariously responsible for bullying of their staff by their staff and in Helen Green v Deutsche Bank Group Services (UK) Ltd the High Court upheld a claim for personal injury against the employer due to psychiatric illness caused by bullying and harassment. The court also upheld a claim under the Protection from Harassment Act 1997 and awarded damages in excess of £800,000.

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Majrowski v Guy's St Thomas' NHS Trust

William Majrowski claimed that he was bullied and harassed by his line manager at Guy's St Thomas' NHS Trust between November 1998 and June 1999. Proceedings were brought against the Trust, rather than the individual line manager in the County Court in 2003, under the Harassment Act 1997. The claim was struck out by the Court on the grounds that the Act was to protect individuals from harassment by other individuals, and not create another level of employer liability.

Majrowski appealed in 2005, and the Court of Appeal, in a ground breaking judgement, agreed that an employer could be held vicariously liable for the actions of its staff and that the Harassment Act 1997 was the appropriate piece of legislation under which to claim.

The Trust appealed to the House of Lords, who unanimously agreed with the decision of the Court of Appeal, disagreeing with the claim from Guy's and St Thomas NHS Trust that vicarious liability would increase the volumes of claims based on stress, anxiety and other emotional problems at work. Lord Nicholls stated that the prospect of abuse was not a sufficient reason for excluding vicarious liability, as 'the Courts were well able to separate the wheat from the chaff at an early stage of the proceedings'.

This judgement has far-reaching implications for the NHS because although trusts already have well established routes by which employees can raise concerns, this ruling makes it even more important that employers do not tolerate any form of bullying or harassment.

Senior managers in Trusts need to be aware that where, in previous cases, claims were made in Industrial Tribunals and had to be lodged within six months of the actions complained of the introduction of the Harassment Act 1997 means that the claimant have six years in which to make a claim. In Tribunal cases there is no legal aid available and compensation is limited. In County Court legal aid may be available to the claimant and compensation is likely to be considerably greater.

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Green v DB Group Services (UK) Ltd

In Green v DB Group Services (UK) Ltd the High Court found that:

• Bullying and harassment had taken place. There had been a 'relentless campaign of mean and spiteful behaviour' by four women co-workers and a male colleague had treated her in a 'hostile, disrespectful, dismissive, confrontatory' manner
• The claimant's line managers knew or ought to have known what was going on, and that a reasonable and responsible employer would have intervened as soon as it became aware of the problem. Culprits would have been warned about their unacceptable behaviour and reminded that disciplinary proceedings could be taken against them if they persisted
• The defendant knew of the claimants previous history of depression and prescribed anti-depressant medication which indicated she was more vulnerable than others
• The stress created was far more than that normally to be expected in the workplace and it was foreseeable that some people would not be able to stand such levels of stress
• Workplace stress was the cause of the two nervous breakdowns suffered by the claimant
• The behaviour of the individuals concerned amounted to harassment under the Protection from Harassment Act 1997 because it was targeted at the individual, occurred with great frequency and was calculated to distress.

The High Court awarded Miss Green damages in excess of £800,000.

NHS Trusts need to ensure that they take a pro-active role in the management of bullying and harassment, and in particular where the victim is known to be vulnerable. Arranging for staff to attend harassment training was not considered a sufficient defence in the Green case because the alleged bullies did not take the training seriously and the High Court decided that the employer should have done more to prevent the harassment.

In this case although the High Court found in favour of Miss Green on both the Personal Injury claim and the Harassment claim it is likely to be easier to bring claims under the Harassment Act than for personal injury because there is no need for the employee to show that it was reasonably foreseeable that harm would occur.

Both the Majrowski and Green cases are good cause for employers to become more vigilant in looking for signs of bullying and harassment.