Sunderland City Council v Conn
To prove harassment under the 1997 Protection from Harassment Act, claimants have to show they have been subjected to at least two incidents that were “oppressive and unacceptable”. The Court of Appeal has now said in Sunderland City Council v Conn (2008, IRLR 324; IDS 848) that it also has to give rise to criminal liability.
Mr Conn’s union, the GMB, instructed Thompsons to act on his behalf.
Basic facts
Mr Conn had worked for the council as a paver since 1962 (all his working life). He alleged that his foreman had abused, threatened and intimidated him at least five times from 25 July 2000 until 17 November 2000.
In the third incident the foreman became aggressive to Mr Conn and two others when they refused to shop workmates who had been leaving work early. He became angry, aggressive and threatened to “punch out the cabin windows”. In the final incident he threatened to give Mr Conn “a good hiding”.
After that incident, he went off work and never returned. When his employment was terminated in 2005, he claimed that the council was liable for his breakdown both in common law negligence and under the 1997 Protection from Harassment Act.
County Court decision
The judge found that the two incidents did constitute negligence but then went on to decide that his breakdown was caused by something else entirely.
He also found the two incidents amounted to harassment under the Act and that they had caused the claimant temporary anxiety, for which he awarded £2,000. The council appealed, arguing that neither incident was sufficiently serious to constitute harassment within the meaning of the Act.
Court of Appeal decision
And the Court of Appeal agreed. Relying on the decision of the House of Lords in Majrowski v Guy's and St Thomas's NHS Trust, it agreed that to qualify as harassment under the Act, the conduct had to be more than just “unreasonable and unattractive”. Instead it had to be “oppressive and unacceptable” and also give rise to criminal liability.
But in trying to decide what behaviour crosses that boundary it said that courts have to look at the context in which the conduct occurs. In this case, the Court agreed with the council that the third incident did not come close. The foreman did not physically threaten Mr Conn (his threat was directed at property), and his remarks were addressed to three people. Although Mr Conn became agitated by it, neither of his two other work colleagues who were also there had been troubled.
The Court was equivocal about whether the second incident crossed the line “to oppressive and unacceptable conduct”, but that as there had to be at least two incidents of harassment, his claim could not succeed in any event.
Comment
This is a strange and extremely disappointing decision. To begin with, there is no requirement under the Act that each incident should be intrinsically criminal. In fact it was because the conduct was often not intrinsically criminal that the Act was passed in the first place. In any event, a threat to commit criminal damage is intrinsically criminal.
The distinction between criminal damage and a threat to the person seems artificial – what needs to be looked to is the overall conduct in context, and that was a supervisor who had clearly lost control of his temper. It is not clear why what that was not “oppressive and unacceptable”.
Secondly, the fact that two other workmates were present cannot be conclusive of whether or not the conduct was targeted at Mr Conn. Again, context must be relevant. It is a bizarre world in which supervisors can threaten with impunity so long as they always make sure they threaten at least two people at once.
What is, perhaps, worse is the attitude of the Court of Appeal to the final incident, which did involve a clear threat of violence directed at Mr Conn. However, the Court’s attitude was clear when it commented “what kind of world would we have if a claim for damages could be brought every time a supervisor lost his temper”. The answer is probably a rather better one in which employers’ respect at work policies had some meaning.
However, this comment clearly sums up the Court of Appeal’s main concern - to take this Act out of the employment context in most cases.