Harassment Act allows for easier claims

City worker Helen Green was awarded damages of £852,000 last month for personal injury (PI) suffered at the hands of her former employer Deutsche Bank. Mr Justice Owen found that she had been the victim of a “deliberate and concerted campaign of bullying” by the bank’s staff, leading to a nervous breakdown and a major depressive disorder.

In the press coverage that followed much was made of the fact that Green’s case included a claim under the Protection from Harassment Act 1997. It was suggested that the law had been recently changed to make it easier for victims of bullying to claim compensation and that Green’s case may open the floodgates for a succession of similar cases.

In fact Green’s claim under the 1997 act was a fallback position, and one that ultimately she did not need to rely on. Her case was presented primarily as a claim in negligence. She succeeded in satisfying the judge that the bank had breached its duty, as her employer, to protect her from harm to her health while at work. Owen J was also satisfied that the behaviour of the bank’s staff caused Green psychiatric injury and that the bank should have foreseen this.

It was not until the decision in Majrowski, handed down by the House of Lords in July, that Green could even be sure of having a claim under the 1997 act. Majrowski was a test case which established for the first time that an employer could be vicariously liable under the 1997 act for harassment carried out by members of its staff. There was no change in the law as such, merely clarification of the extent to which it could apply vicariously.

The reason that 1997 act claims are viewed as an easier route to compensation are twofold.

First, a claimant need not prove that the employer should have foreseen that the actions of its staff would cause the type of harm suffered. Where psychiatric injury is concerned, this can be a particularly difficult hurdle for a claimant to overcome in a PI. An employer is entitled to presume, unless told otherwise, that its employees are reasonably robust individuals, able to withstand the usual pressures of the workplace.

Second, there is no need for the claimant to have developed a full-blown psychiatric disorder in order to receive damages. Under the 1997 act, a victim can be compensated simply for anxiety.

In Green’s case, Owen J awarded damages under the usual heads of loss associated with negligence and PI. He decided that Green’s alternative claim under the 1997 act also succeeded, but he made no separate award. Compensation for anxiety was included within her general damages for pain, suffering and loss of amenity. Her financial losses resulting from the harassment were subsumed within her damages for past and future loss of earnings, pension loss and various other expenses.

As such the level of damages to be awarded under the 1997 act in cases where there has been harassment at work, but no negligence on the part of the employer, is as yet undecided.

Claims in negligence as a result of bullying at work are notoriously difficult to prove. Green’s case was exceptional in that there was a documented history of bullying within her department that had made several other people ill and of which the bank was well aware. In addition, the bullying to which Green was subjected was witnessed by colleagues who corroborated her story. It was also documented in her complaints to the bank’s HR department, which failed to take adequate steps to improve her situation.

In cases where the evidence of what the employer knew about the bullying is not so strong, or where the complaint is of stress and anxiety as opposed to a psychological disorder, a claim under the 1997 act may be a claimant’s best option. Damages under the 1997 act may well match the level awarded to Helen, but that point has yet to receive clear judicial endorsement.

Hazel Donaldson is a solicitor at Mishcon de Reya. She acted with litigation partner Tony Morton-Hooper for Helen Green in her successful claim against Deutsche Bank