England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(MR RECORDER GRANGER)
REF NO: 7ML01656

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/12/2009

Lord Justice Maurice Kay :

1. Section 1(1) of the Protection from Harassment Act 1997 provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. The prohibition is enforceable by the creation of a criminal offence (section 2) and a civil remedy (section 3). "Harassment" is not exhaustively defined by the Act but section 7(2) provides that it includes "alarming the person or causing the person distress". This appeal is concerned with an action for damages for harassment. The appellant claims that she was harassed at work by her supervisor Mrs Jackie Lavy for whose acts the respondent is vicariously liable. At the trial in Brighton County Court on 24 October 2008, Mr Recorder Grainger dismissed the claim. Although the appellant's evidence was not challenged and the respondent called no evidence, and although the respondent did not dispute vicarious liability if harassment was established, the Recorder decided that the proven acts did not amount to harassment.
2. The Recorder described the facts in these passages in his judgment:

"Miss Veakins was employed by the defendants … as an electrician – initially as a trainee – from September 2003 to September 2005. She then went on sick leave for depression from September 2005 until June 2006 when she decided to terminate her employment. The problem was in the period from July to September 2005 when a lady called Jackie Lavy became Miss Veakins' supervisor …

In her statement Miss Veakins said that Mrs Lavy clearly did not like her. They had an initial dispute over a wages problem, of a kind which is perfectly common in the workplace, leading to a possibly embarrassing 'telling-off' (that was Miss Veakins phrase) in front of others. Miss Veakins said that she felt Mrs Lavy persistently picked on her, singling her out from her fellow employees for no reason at all. There were further disputes about time-keeping and about Mrs Lavy requiring the claimant for a time to sign an In and Out register every day. Miss Veakins complained that Mrs Lavy changed the existing practice about Miss Veakins being picked up on the way to a particular job by other workmen. There was also a complaint about Mrs Lavy on one occasion telling her to "fuck off", although Miss Veakins acknowledged that that word was not in itself unusual in this work environment. There was also a complaint about Mrs Lavy ripping up in front of Miss Veakins a letter of complaint that Miss Veakins had written.

Miss Veakins said that Mrs Lavy clearly did not like her and made life hell for her. By the end Miss Veakins acknowledged that she did not like Mrs Lavy either and by that stage she accepted that she may have been a little confrontational herself, in particular about the question of wages.

There is no doubt that Mrs Lavy was the principal problem. Paragraph 12 of the witness statement reads:

'Apart from Mrs Lavy the job was perfect for me. I had worked hard for the company for two years and eight months had been spent working without pay. I did not want this taken away just because someone did not like me.'

There were complaints about office gossip and also about Mrs Lavy asking other employees questions about Miss Veakins private life, as Miss Veakins saw it to arm herself with useful material for a campaign of victimisation."

Although the appellant was cross-examined the Recorder observed that in all essentials the matters alleged in her witness statement were not challenged.

3. The Recorder's approach to what, as a matter of law, amounts to harassment was expressed in these terms:

"Harassment under section 1 … not only affords a civil remedy under section 3 but also constitutes a criminal offence under section 2. The relevant and binding authorities appear to me expressly to exhort me as a first instance tribunal to bear that in mind, when deciding whether the conduct complained of constitutes harassment within section 1."

4. The Recorder referred to the decisions of the Court of Appeal and the House of Lords in Majrowski v Guy's and St Thomas' NHS Trust [2005] EWCA Civ 251, [2006] UKHL 34, [2007] 1 AC 224. He then paid particular attention to Conn v Council and City of Sunderland [2007] EWCA Civ 1492, commenting that there "the point was addressed … head-on". He set out a passage from the judgment of Buxton LJ in Conn who, having referred to the speech of Lord Nicholls in Majrowski, said (at paragraph 18):

"Crucial to that [the type of conduct that crosses the line into harassment] is Lord Nicholls' determination … that the conduct concerned must be of an order that would sustain criminal liability, and not merely civil liability on some other register. Had the Recorder had that requirement in mind when he came to this part of his judgment, it seems to me I have to say completely impossible that he would have concluded that the third incident, as it had been called … could amount to harassment. But what occurred is a very long way away from anything that, in a sensible criminal regime, would lead to a prosecution, much less to a conviction."

5. In the present case the Recorder's conclusion was stated in these passages:

"At the end of the day it is a matter for my judgment on the facts, in particular on Miss Veakins' witness statement and on her evidence but also on the other documents that I have read, whether this conduct constitutes harassment within the meaning of section 1 of the Act. I take the view that it plainly does not, very largely because I cannot see that any sensible prosecuting authority would pursue these allegations criminally; or, even if a prosecution were somehow brought, say perhaps by the claimant herself in a private prosecution, I cannot see that any prosecution would suffer any fate other than to be brought to an early end as an abuse of process.

These extremely regrettable episodes, though made out factually, do not seem to me to come anywhere near the line of criminality such as would bring them within section 1 of the Act."

6. He added that he did not doubt that "the whole of this experience was unpleasant and upsetting from Miss Veakins' point of view". Nevertheless he dismissed her claim.
7. On behalf of the appellant, Mr Mark Turner QC (who did not appear below) submits that the Recorder erred both in his evaluation of the evidence and in his approach to the law. The complaint about the evaluation of the evidence is that the judgment contains no actual evaluation of the behaviour of Mrs Lavy beyond the conclusion that it was not such as to justify a criminal prosecution. Mr Turner's criticism of the Recorder's approach to the law is that, whilst it correctly refers to the need to keep in mind that, to amount to harassment, the conduct must be "of an order which would sustain criminal liability" (per Lord Nicholls in Majrowski at paragraph 30), it does not engage with what that requires. To ascertain what is required, it is necessary to look further into the speeches in Majrowski.
8. The extract from the speech of Lord Nicholls to which I have referred comes from this longer passage in paragraph 30:

"Where … 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 recognise 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."

9. Baroness Hale said (at paragraph 66):

"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."

10. Lord Nicholls' reference to conduct that is "oppressive and unacceptable" was adopted by Longmore LJ in Allen v London Borough of Southwark [2008] EWCA Civ 1478, paragraph 9. In the most recent authority in this Court, Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, Jacob LJ said (at paragraphs 17-19):

"I accept that the course of conduct must be grave before the offence or tort of harassment is proved …

It has never been suggested generally that the scope of the civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognise, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene …

I am quite unable to conclude that the impugned conduct is incapable of satisfying the test. On the contrary I think, at the very least, that it is strongly arguable that it does. I ask myself whether a jury or bench of magistrates could reasonably conclude that the persistent and continued conduct here pleaded was on the wrong side of the line, as amounting to 'oppressive and unacceptable conduct'. I am bound to say that I think they could."

11. Leaving aside the fact that Jacob LJ in Ferguson variously described the necessary level of conduct as "grave" and "fairly severe", it seems to me that, since Majrowski, courts have been enjoined to consider whether the conduct complained of is "oppressive and unacceptable" as opposed to merely unattractive, unreasonable or regrettable. The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which "would sustain criminal liability".
12. Although the Recorder referred to paragraph 30 of the speech of Lord Nicholls in Majrowski, he did not set it out, preferring to set out the passage from the judgment of Buxton LJ in Conn to which I have referred. What he did was to focus primarily on his assessment of whether a prosecuting authority would have pursued a criminal case and, if there had been a prosecution, whether it would have had any prospect of success. He plainly thought that it would have had no such prospect and that it would have been stayed as an abuse of process. What the Recorder did not do was to evaluate the evidence against the primary requirement that, in order to establish liability, the conduct must be "oppressive and unacceptable". Those words are conspicuously absent from his judgment. In my view, that displays an erroneous approach.
13. On behalf of the respondent, Mr Andrew Hogarth QC (who also did not appear below) submits that, even if (contrary to his primary submission) the Recorder was wrong not to evaluate the evidence against the test of "oppressive and unacceptable", his finding that any criminal prosecution based on this evidence would be stayed as an abuse of process is fatal to the present appeal. In these circumstances, it is necessary for us to consider the appellant's witness statement so as to see whether the Recorder reached an unassailable conclusion in relation to it, bearing in mind that, in the Recorder's words, in all essentials it was not challenged.
14. The witness statement comprises nine pages of single-spaced typescript. It discloses that, until Mrs Lavy became her supervisor in July 2005, the appellant's employment by the respondent had been entirely satisfactory and uneventful for almost two years. However, the two months under Mrs Lavy's supervision resulted in her going on extended sick leave from which she never returned. She suffered from depression for which she was prescribed medication and received counselling. The undisputed medical evidence from a consultant psychiatrist accepts that the depression was caused by her dealings with Mrs Lavy. The witness statement describes numerous incidents over the two month period and includes episodes that humiliated and embarrassed the appellant in the presence of others. There are references to demoralisation and victimisation. There is an account of how, from an early stage, Mrs Lavy sought to obtain information from the appellant's colleagues, including information about her private life, "to make my life more difficult at work". There are indications of callousness – "she was smiling all the time, obviously enjoying the situation". When, at the suggestion of a senior manager, the appellant set out her concerns in a letter to Mrs Lavy and handed it to her, Mrs Lavy tore it up without reading it and put it in the bin. When the appellant said that the senior manager had suggested the letter, Mrs Lavy replied "I'm not interested". All this was taking place in the context of several incidents which brought the appellant and Mrs Lavy into conflict – unpaid wages, issues about punctuality and travel arrangements and so on. It is not necessary to set out the detail here. It is sufficient to record that, in her witness statement, the appellant describes and explains them all in terms that show substantial reasonableness on her own part but quite the opposite on Mrs Lavy's part. More often than not in cases arising out of conflict in the workplace there are two sides to the story. On this occasion, however, there is only one and the Recorder accepted it without qualification.
15. All this leads to the question: if the Recorder had considered the evidence by reference to the test of "oppressive and unacceptable", would he have inevitably come to the same conclusion, namely that the appellant had failed to prove harassment on the balance of probabilities? In my judgment, he would not. In a case where the appellant's evidence has been accepted by the trial judge and there is no contrary evidence, this court is at no disadvantage when it comes to the evaluation of that evidence. It seems to me that the Recorder undervalued the evidence. The account of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust woman to a state of clinical depression is not simply an account of "unattractive" and "unreasonable" conduct (in Lord Nicholl's words) or "the ordinary banter and badinage of life" (in Baroness Hale's words). It self-evidently crosses the line into conduct which is "oppressive and unreasonable". It may be that, if asked, a prosecutor would be reluctant to prosecute but that is not the consideration, which is whether the conduct is "of an order which would sustain criminal liability". I consider that, in the event of a prosecution, the proven conduct would be sufficient to establish criminal liability. I do not accept that, in a criminal court, the proceedings would properly be stayed as an abuse of process.
16. I have reached these conclusions without reference to a further submission advanced by Mr Turner. He criticises the Recorder for not considering whether Mrs Lavy's conduct was malicious. Although malice is not an ingredient of harassment (which may be committed if the perpetrator does not know but ought to know that his conduct amounts to harassment), I accept that the presence of malice makes satisfaction of the "oppressive and unacceptable" test easier to achieve. For my part, I consider that the undisputed evidence in this case is susceptible to a finding of malice. I find it impossible to escape the conclusion that Mrs Lavy's extraordinary conduct must have been motivated by a desire to do whatever she could to force out an employee for whom she had a profound personal dislike.

Conclusion

17. It follows from what I have said that I would allow this appeal, substitute a finding for the appellant on liability and return the case to Brighton County Court for damages to be assessed. I add these observations. Since Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613, it has become more difficult for an employee to succeed in a negligence action based on stress at work. It seems that this may be causing more employees to seek redress by reference to harassment and the statutory tort, although it is doubtful whether the legislature had the workplace in mind when passing an Act that was principally directed at "stalking" and similar cases. Nevertheless, there is nothing in the language of the Act which excludes workplace harassment. It should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be "oppressive and unacceptable" but I have done so in circumstances where I have also described it as "extraordinary". I do not expect that many workplace cases will give rise to this liability. It is far more likely that, in the great majority of cases, the remedy for high-handed or discriminatory misconduct by or on behalf of an employer will be more fittingly in the Employment Tribunal.

Lord Justice Rimer:

18. I agree.

Lord Justice Waller:

19. I also agree.