Majrowski v. Guy's and St. Thomas' NHS Trust

The Protection from Harassment Act 1997 ('the 1997 Act') prohibits harassment. A person must not pursue a course of conduct which amounts to harassment of another. A breach of this prohibition may be the subject, amongst other matters, of a claim for damages. The question raised by this appeal is whether an employer is vicariously liable for harassment committed by an employee in the course of his employment.

The harassment in this case concerns two employees of Guy's and St Thomas's NHS Trust ('the Trust'). In November 1998 the Trust employed William Majrowski as a clinical auditor co-ordinator. His departmental manager was Mrs Sandra Freeman. Mr Majrowski was not happy with the way she treated him. He claimed she bullied and intimidated him. She was, he said, rude and abusive to him in front of other staff. She was excessively critical of his time-keeping and work. She imposed unrealistic performance targets for him and threatened him with disciplinary action if he failed to meet them. She isolated him by refusing to talk to him. This treatment, he said, was fuelled by homophobia: he is a gay man.

On 20 April 1998 Mr Majrowski made a formal complaint of harassment against Mrs Freeman. The Trust investigated this in accordance with its anti-harassment policy. The investigation resulted in a finding that harassment had occurred. Subsequently, on 7 June 1999 the Trust dismissed Mr Majrowski for reasons unrelated to the circumstances of this case.

Nearly four years later, on 13 February 2003 Mr Majrowski commenced these proceedings against the Trust. He claimed damages pursuant to section 3 of the 1997 Act for distress and anxiety and consequential losses caused by the harassment he suffered while employed by the Trust. Mrs Freeman, he said, was at all times acting in the course of her employment by the Trust. He made no claim against Mrs Freeman herself. Nor did he make any claim against the Trust for negligence or breach of his contract of employment. His claim was based exclusively on the Trust's vicarious liability for Mrs Freeman's alleged breach of the statutory prohibition of harassment.

The proceedings were struck out summarily by Judge Collins CBE sitting at the Central London County Court on 24 February 2004. He held that the 1997 Act was not designed to create another level of liability in employment law. Employees are already adequately protected by the common law.

Mr Majrowski appealed. The appeal was heard by the Court of Appeal, comprising Auld, May and Scott Baker LJJ. On 16 March 2005, by a majority of two to one, Scott Baker LJ dissenting in part, the Court of Appeal allowed the appeal. The case should be permitted to go to trial. The court would then have to determine whether Mrs Freeman did harass Mr Majrowski within the meaning of the 1997 Act in the ways he alleged. The Trust has now appealed to your Lordships' House.

Vicarious liability and statutory obligations

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