The appellant NHS trust appealed against the decision ( EWCA Civ 251;  QB 848) that it was vicariously liable in damages to the respondent (M) under s 3 of the Protection from Harassment Act 1997 for harassment committed by one of its employees in breach of s 1 of the Act. M, who had been employed by the trust, had alleged that his manager had harassed, bullied and intimidated him while acting in the course of her employment. An investigation by the trust had resulted in a finding that harassment had occurred. M had claimed against the trust for damages under s 3 of the Act based exclusively on the trust’s vicarious liability for its employee’s alleged breach of the statutory prohibition of harassment. The trust, relying on the phrase “damages may be awarded” in s 3 of the Act, submitted that the award of damages under that section was discretionary, and therefore harassment could not be equated with a common law tort. The trust also submitted that the Act was not aimed at the workplace but was a legislative response to the public order problem of stalking.
HELD: Appeal dismissed
(1) The principle of vicarious liability was not confined to common law torts, but was also applicable to equitable wrongs and breaches of statutory obligations. Unless statute expressly or impliedly indicated otherwise, vicarious liability was applicable where an employee committed a breach of a statutory obligation sounding in damages while acting in the course of his employment. An employer could be vicariously liable if the employee’s conduct was closely connected with the acts the employee was authorised to do and the conduct might fairly and properly be regarded as done by the employee in the course of her employment.
(2) The effect of s 3(1) was to render a breach of s 1 a wrong giving rise to the ordinary remedies the law provided for civil wrongs. The enabling language “may be awarded” was apt simply to extend or clarify the heads of damage or loss for which damages were recoverable.
(3) Neither the terms nor the practical effect of the Act indicated that Parliament intended to exclude the ordinary principle of vicarious liability. By s 3, Parliament had created a new cause of action, a new civil wrong, and damages were one of the remedies for that wrong. Parliament had added harassment to the list of civil wrongs because it considered the existing law provided insufficient protection for victims of harassment. The prospect of abuse in cases of alleged workplace harassment was not a good reason for excluding vicarious liability.
(4) Section 10 of the Act inserted a new section, s 18B, into the Prescription and Limitation (Scotland) Act 1973, which assumed that in Scotland an employer might be vicariously liable in damages to the victim of a course of conduct amounting to harassment in breach of the relevant provision of the 1997 Act. Parliament could not have intended that the position should be different in England.