Bullying ruling could apply to freelancers

Freelancers could have claims against their clients for bullying in the workplace following a recent Law Lords ruling.

The ruling, under the Protection from Harassment Act, involved an employee and his employers, but law firm Mace & Jones advised UKTECH that in appropriate circumstances, it could apply to anyone in the workplace, including freelancers on a client's site.

Mace & Jones Head of Employment Law Martin Edwards said even if there is no claim of discrimination or constructive dismissal, employees can now hold their employers liable for bullying at work.

He said: "The judgement enables people to sue the employers of bullies under the Protection from Harassment Act.

"The Act was brought in to criminalise 'stalking' and until recently it was not widely recognised that claims could be brought under the Act by employees bullied at work. The decision also exposes employers to claims by third parties who are bullied by employees of the company. The message for employers is to update their anti-bullying policies - and ensure they are implemented effectively."

Small firms

The Forum of Private Business (FPB) also urged the UK's four million small firms to tighten their policy on workplace bullying following the ruling. The FPB and its employment law partner Mace & Jones, warned that the decision opened a new channel for bullying claims under anti-harassment laws. From now on employers can be held liable for workplace bullying by their employees.

FPB National Chairman Len Collinson said employers would view the decision with a sense of dread. He said: "Small firms consistently see employment law as a fundamental barrier to growth.

"Business owners are bewildered and exasperated by the sheer complexity of employment law. They desperately want to see the administrative burden of employment law simplified and reduced not complicated and increased."

Case background

William Majrowski, an audit co-ordinator for Guy's and St Thomas's NHS Trust, was harassed at work by his line manager. He made an internal complaint, which found he had been subjected to homophobic harassment. He later sued his employers under the Protection from Harassment Act 1997, arguing they were vicariously liable for the behaviour of the manager who harassed him.

His claim was struck out by the County Court on the grounds that this statute does not permit vicarious liability but in March last year, the Court of Appeal overturned that decision and that successful appeal has now been confirmed by the House of Lords with important implications.

The House of Lords judgment confirms that the Protection from Harassment Act 1997, which was originally enacted to combat stalkers, applies to harassment of all types and protects employees while they are at work as elsewhere.

Where one employee, in the scope of his or her employment, harasses another employee or for that matter anyone else, the employer will be vicariously liable for that harassment if a sufficiently clear link between the work and the harassment can be established.

Importantly under the Act it is not necessary for the victim of the harassment to prove they have suffered an injury (whether physical or psychiatric). Also harassment is not specifically defined by the Act and may cover many types of situation in which an employee is caused alarm, anxiety or distress.

Thus damages may be claimed in cases of bullying in which there is no apparent element of race or sex discrimination. Moreover if claims are pursued under the Protection from Harassment Act employees will have a six year window in which they can bring a case. By contrast the time period for filing a discrimination claim via an employment tribunal is normally three to six months after the last alleged incident occurred.

Damages awarded by the two routes are likely to be similar but by pursuing an anti-harassment claim via the courts a successful claimant could recover costs. In tribunals, parties typically pay their own costs.