Harassment: a growing tort

The Protection from Harassment Act 1997 (PHA) affords civil and criminal remedies to victims of systematically unpleasant and, occasionally, deranged behaviour. It was introduced to tackle the problem of stalking, but has been invoked to tackle other forms of harassment, including bullying, and other forms of spiteful and controlling behaviour, both at home and in the workplace. The Act is drafted succinctly, but its application is potentially wide.

Section 1 of the PHA provides that a person must not pursue a course of conduct that amounts to harassment of another, and which he knows or ought to know amounts to harassment. There is no comprehensive definition of harassment in the PHA, but s 7 provides that it includes alarming a person, or causing them distress. A course of conduct means conduct on at least two occasions, and includes speech.

By s 3, a breach or apprehended breach of the s 1 duty may be the subject of civil proceedings, and damages may be awarded for '(among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment'. Breach of an injunction granted under s 3 is an offence punishable with up to five years' imprisonment.

By s 2 of the PHA, a person who pursues a course of conduct in breach of s 1 is guilty of a criminal offence. By s 4, it is an offence to pursue a course of conduct on at least two occasions against another, which causes the other person to fear that violence will be used against him. A person convicted under ss 2 or 4 may be the subject of a restraining order, as well as a sentence. Breach of a restraining order is also an offence, punishable with up to five years' imprisonment.

The PHA has provided the University of Oxford, its employees and contractors with ongoing protection from intimidation by 'animal rights' activists: University of Oxford v Broughton [2006] EWHC 1233. It has been used in other, more unusual scenarios.

Some unusual cases

In Howlett v Holding [2006] EWHC 41, the PHA provided a remedy of last resort. Mr Holding subjected Ms Howlett, a former mayor, to a campaign of victimisation, after she spoke against his application for planning permission in 2000. She won two libel actions, after he flew aircraft with banners over her home, alleging that she was a thief and unfit to hold public office. He even had her followed to shops and restaurants. He stated that his aim was to cause her 'living hell'. He would not stop, so she sued for harassment. Mr Justice Eady rejected Holding's claim to be exercising his right to freedom of expression under Art 10 of the European Convention. The judge found that Holding's 'cruel and cynical' activity displayed contempt for the earlier judgments, and granted an injunction.

The PHA has also provided compensation to a wife against her parents-in-law: Singh v Bhakar LTL 11/8/2006. The claimant moved into her in-laws' house, after an arranged marriage. Thereafter, she said she was treated like a slave, which the county court found was 'not much of an exaggeration'. She complained that her mother-in-law made her cut her hair in contravention of her religious beliefs; forced her to wear an amulet from another religion, which she found offensive; required her to undertake menial housework, until her hands became infected; and restricted her contact with her own family to an 'intimidating' extent. The claimant left after only four months, and was diagnosed with moderately severe depression. Timothy Scott QC sitting at Nottingham County Court awarded her £35,000 on 24 July 2006.

But there are limits. A dentist has failed in her claim against her former employer and co-workers for harassment (as well as other torts): Merilie v Newcastle PCT [2006] EWHC 1433. The court took account of two psychiatric reports that the dentist, whose employment was terminated for disruptive behaviour, suffered from an obsessive-compulsive personality disorder and an anxiety disorder, which were lifelong and innate. It found that her rigid thinking pattern and 'solipsistic outlook' made her evidence (while sincere) unreliable: 'to an unusual degree she sees, and recalls, only her own image of what occurred'.

The Green case

Following the House of Lords' ruling in Majrowski v Guy's & St Thomas's NHS Trust [2006] UKHL 34, it is clear that employers can now be liable for harassment of staff by other staff. On 1 August 2006, Mr Justice Owen ordered Deutsche Bank to pay Helen Green over £800,000 (including loss of future earnings) for mental illness resulting from a deliberate and concerted campaign of bullying by fellow employees: Green v DB Group Services (UK) Ltd [2006] EWHC 1989.

Green started work with Deutsche Bank as a trainee assistant company secretary in 1997. Shortly afterwards, she began an affair with her head of department, which continued until 2002. She went off sick with depression in 2000. Her employer paid for her treatment. A group of female staff, including her boss' secretary, had made her life and that of other female staff miserable by exclusionary behaviour, hostile stares, and rude remarks. Her boss said that he 'tried not to get involved', although complaints were made. Green also had problems with a male colleague, who constantly tried to undermine her by intercepting her calls and pretending to outsiders that he was her boss. She returned to work, but relapsed after six months. She did not come back. Her employer gave her two years' notice in 2001.

The outcome in Green was perhaps predictable, given the scale of the employer's admissions. Her head of department largely supported the claimant's version of events, and told the court that the employer had failed to do enough to address the behaviour of its employees, and to protect her. The judge said that damages under the PHA were subsumed in the general and special damages, which he awarded for personal injury caused by negligence.

What can employers do?

The size of the award in Green demonstrates that, where employers collectively close their eyes to what is going on, in situations where it is foreseeable that bullying will cause psychiatric injury, they may have to pick up a very large tab indeed. The working environment in that case would strike many as severely dysfunctional, though it may be typical of a 'macho' City climate. Green testified to regular shouting matches on a near daily basis with her undermining male colleague. When Deutsche Bank tried to educate its staff about harassment, by sending them on a training course, the staff would not take the course seriously.

The threshold for a harassment case is much lower than a personal injury claim: all that needs to be proved is a course of conduct that causes distress or anxiety, not psychiatric injury as such. As Mr Justice Owen put it in Green:

'Thus to constitute harassment within the meaning of the Act there must have been conduct:

(a) occurring on at least two occasions;

(b) targeted at the claimant;

(c) calculated in an objective sense to cause distress; and

(d) which is objectively judged to be oppressive and unreasonable.'

The lesson for employers is that anti-harassment policies need to be clearly communicated, and enforced from the top down. In a situation where senior management sit on the fence when faced with obvious problems, it is not surprising if matters fester. It would be prudent to ensure that in a large organisation, there is scope for involving someone with clout from another department '“ or even an associated company '“ when serious complaints about co-workers arise. This would pre-empt the possibility that, as in Green, the head of the department in question is unable to tackle the problem effectively. And where unacceptable behaviour is found, the miscreants must either agree to change, or be asked to leave.

In many instances, this may be a matter of common sense. HR managers and victims may find useful a short book on how to avoid bullying, entitled 'Nasty People', by Jay Carter. This offers 'surefire methods to neutralise the nasty people in your life'. Other cases may require a more subtle approach. A high-performing, but disruptive member of staff might benefit from a course of therapy, designed to help them modify their behavioural style. If s/he is unwilling to cooperate, formal disciplinary measures might have to be considered instead, in which case the employer may well need legal advice on the appropriate procedure.

Mental health professionals

But some 'nasty people' may be mentally ill. According to a recent article, those working in the mental health field are at particular risk of stalkers: see Ronan McIvor and Edward Petch, 'Stalking of mental health professionals: an underrecognised problem', British Journal of Psychiatry (2006) 188: 403-404. The authors cite a definition of stalking as 'a constellation of behaviours involving repeated and persistent attempts to impose on another person unwanted contact and/or communication'. They note that stalking can escalate and lead to intimidation, threats or violence.

They recommend that healthcare providers should ensure that 'appropriate policies are in place to aid awareness and minimise risk, including the provision of formal educational programmes'.

R v Marchese (The Times, 3 August 2006) is an example of extreme stalking behaviour, which gained considerable media attention. On 2 August 2006, a jury at Southwark Crown Court convicted Anna Marchese of several offences connected with a campaign against a consultant psychiatrist, Dr Jan Falkowski. These included harassment, threats to kill, and perverting the course of justice. Falkowski treated Marchese's partner in 1998. From 2002-3, Marchese subjected him and his fiancée to a terrifying barrage of text messages and phone calls, in which she repeatedly threatened to kill his fiancée. The police were unable to trace the caller; apparently, Marchese used a computer in Sweden to route her text messages. They advised the couple to move to a secret address. The wedding was called off. After her arrest, Marchese falsely accused Falkowski of rape. He was suspended from work, and charged. It was shown that her claim was fabricated, the case against him was dropped, and she was convicted.

A defect in the PHA is that it does not, on its face, impose a duty on employers to protect their staff from harassment by third parties, such as patients or their relations. But employers do owe a duty to employees, to ensure their health and safety at work.

In the mental health field, therefore, employers would be prudent to address the well-documented problem of stalking, and the risk of false accusations by stalkers, in their anti-harassment policies. Many employers who deal with the public have strict policies on people who assault their staff. There is no reason in principle why healthcare providers should not also adopt a 'zero tolerance' approach to stalking by patients, ex-patients or their family members.