Vicarious liability for harassment

Majrowski v Guy’s and St Thomas’s NHS Trust HL TLR 13 July

The House of Lords dismissed the appeal of the employer against the finding of the Court of Appeal (24/ LL p55) that an employee has a cause of action under s3 of the Protection from Harassment Act 1997 against his employer in respect of harassment by his departmental manager in breach of s1. It was difficult to see a coherent basis for confining the common law principle of vicarious liability to common law wrongs. The rationale underlying the principle held good for equitable wrongs and also for wrongs comprising a breach of statutory duty or prohibition which gave rise to civil liability, provided always that that statute did not expressly or implicitly indicate otherwise. A precondition of vicarious liability is that the wrong must be committed by an employee in the course of his employment. A wrong was committed in the course of employment only if the conduct was so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, the wrongful conduct might fairly and properly be regarded as done by the employee while acting in the course of his employment. Courts are well able to recognise the boundary between conduct which was unattractive, even unreasonable, and conduct which was 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 s2 of the Act.