COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT
(RECORDER KEARL QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE GAGE
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Mr C Makey (instructed by Messrs Thompsons) appeared on behalf of the Respondent.
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Lord Justice Gage:
"The language and actions used went well beyond those which would normally be regarded as acceptable, even in that environment. They were potentially intimidating, and on the 2nd occasion, very personal toward Mr Conn. I find in the circumstances that I have set out, that the kind of damage that did result in this case, namely intimidation and a psychiatric episode was of the kind that was reasonably foreseeable bearing in mind what the employer knew of the Claimant, since, apart from anything else, this type of behaviour, involving direct verbal abuse coupled by physical threats was the sort of behaviour that might cause psychiatric damage to any worker, whether manual or not. I find that this type of behaviour went well beyond the normal pressures of the job and well beyond what could and should be expected from a manager."
"This is said to have taken place in late October 2000. It is alleged that Mr Dryden asked Mr Conn, Paul Harrison and David Welsh to name those people who had been leaving site early. This has been termed, 'shopping his colleagues'. Mr Conn told me that when he refused, Mr Dryden became angry and threatened to punch out the windows of the cabin and have them up before the personnel dept. Mr Conn was supported in this assertion by Paul Harrison and David Welsh, both of whom gave evidence to a like effect."
The recorder's finding in respect of this incident is expressed as follows:
"Therefore I find on balance that Mr Dryden did demand to know who had left work early. That was a demand made to Mr Conn, but also to Paul Harrison and David Welsh. Neither of them were particularly bothered about the threat to punch through the windows. Mr Welsh said that he was not intimidated, nor indeed did it make him feel uncomfortable. Mr Harrison said that he had not been afraid of Mr Dryden and had not been affected by his conduct upon that occasion."
"It was Mr Conn's account that he had gone to work that morning and Mr Dryden had later approached him asking him why he was giving him the 'silent treatment'. When he replied that he was only prepared to talk to Mr Dryden about work matters Mr Conn told me that Mr Dryden had lost his temper and said that he would give Mr Conn a good hiding and didn't care if he lost his job over it. Mr Conn said that Mr Dryden was so angry that he was shaking with rage and that he, Mr Conn felt so scared and threatened that he asked Mr Harrison to come over to witness what was going on. Mr Harrison did come across and said that he heard Mr Dryden say to Mr Conn that he knew where he, Mr Conn lived. Mr Harrison and Mr Conn then told me that Mr Dryden had told Mr Harrison to 'fuck off' in an aggressive manner."
"In summary therefore, I make the findings that on one occasion Mr Dryden demanded to know of Mr Conn and others, who was leaving work early, and when told that they wouldn't say, he threatened to smash the cabin windows with his fist, and have them up before the personnel dept if they didn't tell him who was leaving the site early. I also find that on another occasion Mr Dryden became angry and aggressive with Mr Conn, specifically when Mr Conn refused to talk to him, and that Mr Dryden threatened Mr Conn with violence, told him that the 2 of them were finished and that he, Mr Conn, was 'a little shit'."
"1(1) A person must not pursue a course of conduct-
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other."
Subsection 1A is not relevant. Subsection 2 reads:
"(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other."
Section 2 provides that a person who pursues a course of conduct in breach of Section 1(1) is guilty of an offence. Section 3 provides that:
"An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question."
Section 3(2) reads:
"On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment."
Finally for these purposes, I must refer to section 7 of the 1997 Act which is an interpretation section. For the material parts it reads:
"(2) References to harassing a person include alarming the person or causing the person distress.
(3) A "course of conduct" must involve—
(a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person…
in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons…"
Subsection B is not relevant nor is Subsection 3A. Subsection 4 reads:
"Conduct includes speech."
"Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognize the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under Section 2."
Lord Justice Buxton:
"Applying the findings that I have made, the defendants are responsible for 2 instances [and therefore a course of conduct] of harassment. The actions of Mr Dryden were such that he either knew or ought to have known that they amounted to harassment of another. In my judgment the actions of Mr Dryden on those 2 occasions were such that any reasonable person would have realised that what he was doing amounted to harassment of Mr Conn. The language and actions used were calculated to cause alarm and distress to those who witnessed them, in particular to Mr Conn, who, unknown to Mr Dryden was already on the verge of a mental breakdown."
Lord Justice Ward:
Order: Appeal allowed.