Harassment needs evidence

Banks v Ablex (Court of Appeal - 24 February 2005)

In October 1998, the claimant was allegedly sworn at and assaulted by a fellow employee ('B'), and subsequently suffered a psychiatric injury.

At first instance, the judge rejected the claimant's allegation that B's conduct amounted to harassment for which the defendant was vicariously liable. The judge concluded it was not reasonable to hold the defendant liable for an act for which they had no knowledge or control.

The claimant appealed on the basis that the judge had failed to: (1) satisfactorily consider B's prior conduct; (2) find that B's conduct towards the claimant on 14 October 1998 amounted to harassment; (3) make sufficient findings of fact to draw a proper conclusion as to foreseeability.

In dismissing the claimant's appeal, the Court of Appeal held that: (1) there was no evidence of conduct before October 1998 that amounted to harassment; (2) harassment was not proved, as such conduct had to occur on at least two occasions; (3) there was no evidence the defendant ought to have foreseen the claimant's psychiatric injury as a result of B's conduct. B had received a formal warning for his behaviour in March 1998 but there was no reason to believe that he would not heed that warning and no reason for the defendant to do any more to protect other employees.

Comment: This case gives guidance on conduct capable of amounting to harassment in accordance with the Protection from Harassment Act 1997 and emphasises the importance of foreseeability when deciding primary liability. - Michelle Scott, BLM London

- These law reports are contributed by insurance law firm Berrymans Lace Mawer (http://www.blm-law.com).

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