Court of Appeal
Published November 23, 2007
Conn v Sunderland City Council
Before Lord Justice Ward, Lord Justice Buxton and Lord Justice Gage
Judgment November 7, 2007

In determining whether harassment had occurred to incur civil liability under the Protection from Harassment Act 1997, the test was to ask whether the gravity of the misconduct was such as would sustain criminal liability under section 1 of that Act.

The Court of Appeal so held when allowing the appeal of the defendant, Sunderland City Council, from Mr Recorder Kearl who, in Newcastle upon Tyne County Court on September 18, 2006, gave judgment for the claimant, William Conn, in civil proceedings under section 3 of the 1997 Act in which he sought damages from his former employer arising out of harassment which he claimed to have suffered at the hands of another employee.

Mr Martin Porter, QC, for the council; Mr Christopher Makey for Mr Conn.

LORD JUSTICE GAGE said that an employer could be held vicariously liable for harassment perpetrated by one employee against another since a civil remedy was available under section 3 in respect of actual or threatened breaches of section 1, which referred to a course of conduct, and for which two instances of harassment were required.

In a particular case, the question would arise whether harassment was made out. The definition was left deliberately wide (Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224, paragraph 66), although the term included alarming a person or causing distress: section 7(2).

Concern had been noted that employers might face unmeritorious claims, but, applying dicta of Lord Nicholls of Birkenhead in Majrowski (at paragraph 30), the courts were well able to recognise the boundary between conduct which was unattractive, even unreasonable, and conduct which was oppressive and unacceptable.

The touchstone, as to whether the facts in a particular case crossed the boundary from the regrettable to the unacceptable, was to ask whether the gravity of the misconduct was of an order which would sustain criminal liability under section 1.

Application of that test to the facts showed that the required course of conduct had not been made out.

Lord Justice Buxton delivered a concurring judgment and Lord Justice Ward agreed.

Solicitors: Crutes, Newcastle upon Tyne; Thompsons, Newcastle upon Tyne.

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