Judgments - Majrowski (Respondent) v. Guy's and St. Thomas' NHS Trust (Appellants)

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    55.  In Harrison v National Coal Board [1951] AC 639 the question was raised, but not decided because an answer to it was unnecessary, whether the effect of the abolition of the doctrine of common employment was that a plaintiff could succeed against the owner on the basis of vicarious liability for a shot-firer's breach of his statutory duty not to fire without having first ascertained that all persons in the vicinity had taken proper shelter. Lord MacDermott said at p 671 that vicarious liability was not confined to common law negligence:

    "It arises from the servant's tortious act in the scope of his employment and there can be no doubt that [the servant] in breaking the shot-firing regulations committed a tort."

Although Lord MacDermott was alone in expressing that view, Lord Guthrie adopted and applied the same reasoning in another case where it was contended that the owner of the mine was liable vicariously for a shot-firer's breach of the regulations. In Nicol v National Coal Board (1952) 102 LJ 357 he held that the fireman in doing his work as a shot-firer was acting in the course of his employment by the defenders and that the firing of the shots was the work which he was employed by the defenders to do:

    "His failure to take the precautions that Parliament has required of him in doing that work did not take him outwith the scope of his employment. Accordingly, his acts were still within the area in which the vicarious liability of a master operates."

    56.  The issue was raised again in Matuszczyk v National Coal Board, 1953 SC 8. In that case however the pursuer's case was based on duties said to have been owed to him by the shot-firer at common law. The defenders' argument was that these duties had been superseded by the duties laid down by statutory regulation, for which the employer was not vicariously liable. The argument that, if the regulation was not complied with, the failure was a duty in statutory duty only which could not also be a failure in common law duty was rejected. Lord President Cooper found it unnecessary to discuss whether a case could be made against the owner of the mine for a breach of the statutory duty laid upon the shot firer: p 18. But Lord Keith said at p 15 that his first impression was that the employers would be vicariously liable, whether the breach of duty was at common law or under statute. He observed that Lord MacDermott's observation to the same effect in Harrison v National Coal Board had attracted sympathetic comment from Lord Porter, and that Lord Reid said that he was not prepared to dismiss the argument as unworthy of consideration.

    57.  In National Coal Board v England [1954] AC 403, which was another shot-firing case, the House again reserved its decision on the issue. But Lord Porter said at p 416 that Lord Guthrie's opinion in Nicol v National Coal Board expressed the view which he held, which was that the shot firer's failure to take the precautions required of him by the regulation did not take him outwith the scope of his employment. Lord Oaksey said at p 421 that he agreed with Lord Guthrie's judgment in Nicol v National Coal Board. He added this comment at p 422:

    "Unless there is something in the statute which creates the obligation indicating the intention that no action shall be brought at common law in respect of its breach, the ordinary rules of the common law of tort are applicable, including the doctrine respondeat superior."

This supports Lord Nicholls' conclusion, with which I agree, that employers are vicariously liable for wrongs having a statutory source unless the statutory provision expressly or impliedly excludes such liability: see para 15 of his speech.

    58.  Against this background the decision to include a reference to the employer or principal of the person responsible for the harassment cannot be dismissed as based on a misunderstanding about the extent of the employer's vicarious liability. There is no rule in Scots law which precludes a finding that the employer is liable vicariously for a breach of a statutory duty imposed on his employee. So far as conduct within the scope of the employee's employment is concerned, the doctrine respondeat superior applies irrespective of whether the duty the employee has breached was laid on him by the common law or by statute. In Scots law too, therefore, the general rule applies in respect of wrongs having a statutory source unless it is displaced by the statute. Parliament could have chosen, had it wished, to exclude the application of the doctrine in the case of conduct by an employee amounting to harassment. But it chose not to do so. It provided expressly, and deliberately, in section 10(1) of the 1997 Act to the contrary. That subsection was included in the Bill from the outset of its passage through Parliament. We can take it that, according to the normal practice in those pre-devolution days, it would have been drafted in the Lord Advocate's Department and that it would have been shown to the Parliamentary draftsman who was responsible for the part of the Bill that was to apply to England and Wales. It would have been removed from the Bill if it had been contrary to the instructions that had been given to the draftsman of that part.

Secondary, not vicarious, liability?

    59.  In a valiant attempt to meet this obstacle to his argument Mr Turner said that the purpose of section 10(1) of the 1997 Act was to deal only with situations where the employer was secondarily, and thus personally and not vicariously, responsible for conduct by his employee which amounted to harassment. He referred to Mattis v Pollock (trading as Flamingos Nightclub) [2003] 1 WLR 2158 as an example of that kind of liability. That was a case where the doorman at a nightclub, having been involved in a violent altercation with the claimant on the premises while performing his duties there, armed himself with a knife which he fetched from his flat a short distance away and attacked him in the street with it some time afterwards. The Court of Appeal held that the responsibility of the nightclub owner for the actions of his aggressive doorman was not extinguished by the separation in time and place from what had happened in the nightclub, and that vicarious liability was therefore established: para 32. But it went on to say that, although personal liability would not necessarily and always follow the establishment of vicarious liability, in that case it did. This was because the owner had chosen to employ the doorman, knowing and approving of his aggressive tendencies, which he had encouraged rather than curbed.

    60.  It is by no means impossible to conceive of circumstances where an employer could be held to be secondarily liable for a course of conduct by an employee amounting to harassment. As the Court of Appeal indicated in Mattis, the encouragement or approval by the employer of such conduct could lead to that result. Indeed, section 7(3A) of the 1997 Act, inserted by section 44(1) of the Criminal Justice and Police Act 2001, expressly provides for precisely such a situation. But I do not regard this a sufficient explanation for the reference to the employer in section 18B(2)(ii). The wording of that provision, when closely analysed, is a sufficient indication to the contrary. It refers to awareness that the defender was a person responsible for the alleged harassment or the employer or principal of such person. The word "or", which appears also in the corresponding provisions of sections 17 and 18, provides for the situation where the liability of the employer or the principal, as the case may be, comes in place of that of the employee. That is the essence of the doctrine of vicarious liability. So I would reject Mr Turner's argument that section 18B does not imply the existence of vicarious liability of the employer but provides merely for an extension of the limitation period in cases where a culpable employer is secondarily liable for the acts of a harassing employee.

The 1997 Act in practice

    61.  Among the arguments that persuaded Scott Baker LJ that the 1997 Act created a liability that was personal only to the perpetrator of the harassment was the fact that, if vicarious liability was imposed by it, this was done without any limitation as to the circumstances. As he said in para 111, no statutory defence is provided. So the only control mechanisms on the employer's strict liability are those laid down by the common law, as explained in Lister v Hesley Hall Ltd [2002] 1 AC 215, Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 and Bernard v Attorney General of Jamaica [2005] IRLR 398. Mr Turner suggested that recognition that the employer could be vicariously liable would provide a strong incentive to the commencement of proceedings against employers, and that employers generally were particularly vulnerable to such claims for which their insurers might decline to provide cover.

    62.  It may be worth noting however that there has been no sign of such a development in Scotland, despite the clear indication in the statute that employers may be vicariously liable in damages for harassment by their employees. This is not because opportunities which the statute provides for obtaining a civil remedy under the 1997 Act have gone entirely unnoticed. But the eight cases which have been reported so far deal only with the use of non-harassment orders. These were orders sought in civil proceedings in the sheriff court (eg McCann v McGurran 2002 SLT 592, where the order was sought against a former husband, and McGuire v Kidston, 2002 SLT (Sh Ct) 66, where the parties had previously had a relationship) or orders sought in criminal proceedings under section 234A of the Criminal Proceedings (Scotland) Act 1995 following a conviction for an offence involving harassment (eg McGlennan v McKinnon, 1998 SLT 494, where the accused, who was convicted of a breach of the peace by shouting at the complainer, had previously had a relationship with her). There are no reported instances of claims made under the Act for damages against an employer for harassment by an employee. The practice appears to have been to continue to use the employment tribunal as the forum for the making of claims based on conduct amounting to harassment in the employment context.

Conclusion

    63.  Although the provisions of the 1997 Act which apply to Scotland differ in various respects from those which apply to England and Wales (see Sam Middlemiss, Liability of Employers under the Protection from Harassment Act 1997 [2006] Edin LR 307), it was not suggested that the intention of Parliament was that there was to be any difference in substance as between the two jurisdictions as to the scope of the civil remedy for harassment. On the contrary, the Home Secretary, Michael Howard, said when introducing the Bill at second reading that the aims of the Bill as it applied to England and Wales were identical to those for Scotland: Hansard, HC Debates, 18 December 1996, vol 287, col 785. The indication in section 10(1) that vicarious liability is available in Scotland where damages are claimed for conduct by an employee amounting to harassment within the meaning of the 1997 Act must be taken to apply to England and Wales also. I would dismiss the appeal.

BARONESS HALE OF RICHMOND

My Lords,

    64.  If we had been the promoters of the Protection from Harassment Act 1997, we might have asked ourselves the policy question, 'Should the employers of people who harass others in the course of their employment be vicariously liable for any damages the court may order under the Act?' The legislators might have thought of a number of policy reasons why the answer should be 'no'.

    65.  They might have considered that the principal purpose of the Act was prevention and protection rather than compensation. It begins with the prohibition of harassment in section 1. This is then made a criminal offence by section 2. Civil remedies, including damages and injunctions are provided for in section 3. The aim, it might be thought, was to deter, to punish or to encourage the perpetrator to mend his ways by the wide range of criminal disposals available on summary conviction, including the restraining orders provided for in section 5, or by the sort of specific prohibitions which may be helpfully contained in an injunction.

    66.  If this was the aim, it is easy to see why the definition of harassment was left deliberately wide and open-ended. It does require a course of conduct, but this can be shown by conduct on at least two occasions (or since 2005 by conduct on one occasion to each of two or more people): section 7(3). All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.

    67.  If prevention and protection were the aim, it is also easy to see why the mental element was framed as it was. A person is guilty of harassment if he knows or ought to know that his course conduct amounts to harassment: section 1(1)(b). He ought to know this if a reasonable person in possession of the same information would think that it amounted to harassment: section 1(2). There is no requirement that harm, or even alarm or distress, be actually foreseeable, although in most cases it would be. This broad formulation helps the courts to intervene to warn the perpetrator and encourage him to mend his ways.

    68.  The promoters of the Act might well have thought that this intense focus on the perpetrator and getting him to stop would not be helped, and might even be hindered, by making the employer vicariously liable. Vicarious liability, as my noble and learned friend, Lord Nicholls of Birkenhead, has so clearly explained, does not depend upon the employer having done anything wrong or even having broken any legal duty imposed upon him. It merely requires that the enterprise pay for damage done by its employees in the course of their employment, a concept which now has a very broad meaning, and certainly embraces conduct which the employer was actively trying to deter and could have done nothing more to prevent. On the facts of this case, the employer had a grievance procedure which was designed to prevent workplace harassment and the perpetrator resigned as a result.

    69.  The promoters might have considered that our law does not generally award damages for anxiety and injury to feelings unless these are so severe as to amount to a recognised psychiatric illness. Discrimination and harassment are statutory exceptions to this rule. But the rule has a sound policy basis in limiting the scope for claiming compensation. There is already concern amongst some of our legislators that the scope for claiming compensation, even for recognised physical injuries, has gone too far. The avowed purpose of the Compensation Bill currently before Parliament is to reign in the so-called 'compensation culture'. The fear is that, instead of learning to cope with the inevitable irritations and misfortunes of life, people will look to others to compensate them for all their woes, and those others will then become unduly defensive or protective.

    70.  The promoters might have thought that employers already owe a duty of care towards their employees, to take reasonable steps to protect them from foreseeable harm to their physical or mental health. There has been a rapid expansion in claims for psychiatric injury resulting from stress at work. Liability turns on the foreseeability of such injury to the particular employee and what the employer might reasonably have been expected to do to avoid it. If employers can be vicariously liable for anxiety and distress caused without any breach of duty on their part, such claims will not only be routinely added to stress at work claims, they will also found a quite separate stream of, admittedly probably small, claims for harassment at work. The promoters might have thought that there were better ways than a myriad of new small claims to encourage better practice in the workplace if such were needed.

    71.  The promoters did address their minds to the appropriate limitation period and deliberately disapplied the ordinary three year period for personal injury claims: section 6. Harassment can take place over very long periods and they would not have wanted the earlier conduct to be left out of account.

    72.  But these were policy questions for the legislators. As Mr Robin Allen QC for the respondent points out, floodgates arguments may assist the courts in deciding how to develop the principles of the common law. They are of little help to us in construing the language which Parliament has used. Mr Mark Turner QC, on behalf of the appellant NHS Trust accepts that it is a question of construction. He argues that there should be no general presumption one way or the other that a statute aimed at prohibiting the conduct of one person should or should not import vicarious liability if that conduct is committed in the course of employment. However, Parliament must be assumed to legislate in the knowledge of the general law, which includes the law of vicarious liability, so that one must look for indications that Parliament did not intend it to apply to the particular duties or prohibitions it was imposing.

    73.  But in this case there can be no doubt, for the reasons explained by my noble and learned friend, Lord Hope of Craighead, that Parliament contemplated vicarious liability. Despite Mr Turner's valiant efforts, the Scottish limitation provisions can be explained in no other way. Although the Scottish limitation rules are different from the English, there is no indication that the substantive liabilities created by the Act were intended to be any different.

    74.  As we are not policy-makers and legislators, but judges construing the language used by Parliament, in the context of the general law of vicarious liability of which Parliament must be presumed to have been aware, I am driven to conclude, in agreement with my noble and learned friends, Lord Nicholls and Lord Hope, that this appeal should be dismissed.

LORD CARSWELL

My Lords,

    75.  Three of the classic methods of interpretation of a statutory provision are construction of the language of the enactment, consideration of the mischief at which the provision was aimed and weighing of the consequences of the conflicting interpretations of the provision in question. All are designed to assist the object of the tribunal interpreting the provision, to determine the meaning which Parliament intended in enacting it.

    76.  The wording of the enactment, not merely individual provisions, but the whole enactment, is the first resort of the interpreter, and in many, if not most, cases it will resolve the question. The Court of Appeal in the present case did not find sufficient indications in the language of the Protection from Harassment Act 1997 ("the 1997 Act") to determine the question whether an employer was to be liable for harassment committed by his employee in the course of his employment. It therefore resorted to consideration of the statutory objective and the consequences of adopting either interpretation.

    77.  All three members of the Court of Appeal held, on what they described as the broad issue, that an employer's vicarious liability can extend as a matter of principle to breaches of statutory duty by an employee. In common with your Lordships, I am in agreement with that conclusion. Where they differed was on the narrow issue, whether an employer would be liable under the 1997 Act for harassment committed by his employee in the course of his employment. In their judgments there was a thorough and penetrating discussion of the policy of the legislation, the statutory objective and the consequences of adopting either answer to the question posed. The majority, Auld and May LJJ, came down in favour of finding that the employer would be vicariously liable, while Scott Baker LJ's consideration, particularly of the statutory policy, took him to the opposite conclusion.

    78.  If we had no other aids to construction but these factors, I should myself regard them as very evenly balanced. I can see considerable force in the respective arguments which prevailed with the majority and the minority. The matter might be concluded by the operation of a presumption : on the existence of such a presumption I respectfully agree with the view expressed by my noble and learned friend Lord Nicholls of Birkenhead at paras 16 and 17 of his opinion. I would observe, however, that the 1997 Act is not confined in its scope to the workplace and, as its history shows, its original focus was not the workplace at all. One can envisage situations in which it is desirable in which there should be vicarious liability for the acts of an employee towards a member of the public, where the victim cannot identify the employee or obtain redress from him.

    79.  Be that as it may, the question of construction is in my opinion determined by the terms of section 10, which inserted a new section 18B into the Prescription and Limitation (Scotland) Act 1973. This part of the Act, the significance of which had not been brought to the attention of the Court of Appeal, furnishes an indication of the statutory intention by resort to the primary source of interpretation, the wording of the enactment itself. It is quite apparent, as my noble and learned friend Lord Hope of Craighead has demonstrated, that in its use of the words in section 18B(2)(b) "the defender was a person responsible for the alleged harassment or the employer or principal of such a person" Parliament envisaged that an employer would be vicariously liable for his employee's harassment of another person. I cannot suppose that it was contemplated that that should be the position only in Scotland and that the same should not apply to England and Wales (Northern Ireland has its own legislation, the material parts of which are virtually in identical terms to the 1997 Act, and the same interpretation will apply to that). It therefore seems to me the most direct and compelling indication of the intention of Parliament that there should be vicarious liability in a case such as the present. The other approaches accordingly recede into the background. As I have stated, I would myself regard the factors weighed up in consideration of these other approaches as evenly balanced; certainly, they cannot be said to point away from the conclusion indicated by the wording of the Act with sufficient strength to require one to question that conclusion.

    80.  I accordingly agree with your Lordships that the appeal should be dismissed.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    

 
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