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Protection from Harassment Act Briefing 150
 

 

 

 

Protection from Harassment Act Briefing 150

Protection from Harassment Act
Tackling Harassment at Work

Dec 2006

Introduction

In September at the annual Safety Representatives conference UNISON Scotland launched a report Violent Assaults on Public Service Workers in Scotland. That report highlights the continuing high level of assaults on public service workers and an action plan to address this issue. Part of that action plan is making better use of the remedies available to UNISON members who are the victims of violent incidents at work both from the public and other staff - including bullying and harassment. This briefing covers one of those remedies the Protection from Harassment Act 1997.

The general principle behind the Act is to protect persons from harassment. This is particularly so against the background of traditional remedies of actions for damages and interdict being inadequate, ineffective and costly. The relevant sections applicable to Scotland in the Protection from Harassment Act 1997 are Sections 8 to 11. The Act was further amended by Section 49 of the Criminal Justice (Scotland) Act 2003.


Harassment

In terms of Section 8 of the Act every individual has the right to be free from harassment and the person must not pursue a course of conduct which amounts to harassment of another. The course of conduct must either be intended to amount to harassment of the person or occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.

  • The course of conduct must involve conduct on at least 2 occasions.
  • The harassment includes causing the person alarm or distress.
  • The conduct includes speech. This means that the conduct in question is therefore not confined to physical abuse or violence. It applies to verbal abuse.


Harassment and the Workplace

The provisions of the Act apply to workplace situations. In a House of Lords case a claimant felt his manager bullied and intimidated him: being rude and abusive in front of staff and excessively critical of his timekeeping and work. The manager imposed unrealistic performance targets with threats of disciplinary action if he failed to meet them and isolated him by refusing to talk to him. He felt the treatment was fuelled by homophobia; he was gay. Harassment was found to have occurred under the Protection from Harassment Act 1997 (Majrowski v- Guys and St Thomas's NHS Trust (2006) UK HL 34). The House of Lords commented:

"Courts would have in mind that irritations, annoyances, even a measure of upset arose at times in everybody's day to day dealings with others. Courts were well able to recognise the boundary between conduct that was unattractive, even unreasonable and conduct which was oppressive and unacceptable."

Other cases have settled where the claimant suffered incidents such as being shouted and sworn at by a line manager and also when the client injured himself at work, receiving a text message from the manager saying "you soft twat, big girl's blouse".

In another case the actions of a foreman were held to constitute harassment. The manager had threatened to punch out the windows of the cabin and have the claimant up before the personnel department for refusing to "shop" late colleagues to his manager. On a separate occasion the foreman lost his temper ("Fuck offyou little shit") and threatened violence ("I will give you a hiding") Conn v- the Council of the City of Sunderland 22 August 2005 Newcastle upon Tyne County Court.

In the case of Green v- DB Group Services (UK) Limited harassment was found to arise from "behaviour by colleagues which might seem childish and petty (in isolation) but dealing with it on a daily basis had a cumulative effect".

Remedies

Damages

If there is conduct which does qualify as set out above then it is open to the person in question to take out civil proceedings known as an action of harassment. Like any personal injury case civil proceedings could be threatened where harassment in terms of the Act has occurred and a settlement achieved.

Damages which may be awarded in an action for harassment include damages for any anxiety caused by harassment. The reference to damages for anxiety alone is a real distinction from damages which may be awarded in terms of personal injury. In a personal injury case damages for anxiety would have to be confined to a psychiatric or psychological disorder unless there was some physical element present. In addition in a stress case it would also not be necessary to prove foresee ability on the part of an employer that the harassment would cause injury or even knowledge that it is taking place. It would simply be enough to demonstrate harassment in terms of the Act.

The awards may of course vary from case to case but where anxiety only is present the House of Lords case stated that they are "likely to be modest". Amounts have varied from £2000 in Conn above for the short term anxiety of a few months, to in the case of Green £35,000 was awarded for severe psychiatric injury (in addition to substantial figures for earnings). Damages provisions might be frustrated if the remedy was only confined to the fellow employee in question. In Majrowski they found that in certain circumstances harassment can give rise to vicarious liability on the part of the employer. In line with vicarious liability cases the court would have to be satisfied that the wrong was closely connected with the acts the manager was authorised to do in order to find the employer liable for those acts. This principle may be able to be applied to an employee of another employer.

Non Harassment Order

The second and more immediate remedy for the court in such civil proceedings is where it can make an order known as a "Non Harassment Order" (NHO) requiring the harasser to refrain from conduct in relation to the person in question. The consequences of breach of an NHO are that it is automatically a criminal offence in terms of Section 9. The maximum sentence for such a breach is imprisonment for a term not exceeding 5 years or a fine or both. This is different from interdict which would also be available to the court (as an alternative but not in addition to an NHO). The problem with an interdict, interim or otherwise, is that a breach is not automatically an offence. A full application has to be made to the court alleging the breach. This may or may not necessarily lead to a finding of contempt of court. Very often it is sufficient for the person alleged to have committed the breach to give undertakings to the court that it will not happen again or further conditions to be put on to the interdict etc. In practice in very few cases a contempt of court finding is made.

Another advantage of NHO is that there are powers of arrest under Section 49 of the Criminal Justice (Act) 2003 which amended the Protection from Harassment Act 1997. This gives statutory powers of arrest to the police for breach of an NHO. No warrant is necessary and they have the power of arrest where a person is reasonably suspected of breaching an NHO. It is specifically provided that the Power of Arrest exists where the NHO has been granted in civil proceedings. A power of arrest does not exist for interdict breach. Provided the arrest is carried out on the above basis it may be more than enough to ensure there is future compliance with an NHO. Indeed the threat of even calling in the police may be sufficient.


Action for branches

The Protection from Harassment Act may be legislation which could be used to fuller advantage in Scotland for UNISON members both in the workplace and in relation to members of the public. Although the provision can also be used for criminal proceedings and therefore initiated by the police and pursued by the Procurator Fiscal, the real importance is the availability of civil proceedings whereby the member can initiate and pursue an effective remedy themselves with legal assistance from UNISON.

Branches are therefore asked to give publicity to these provisions in their communications to members. Legal action in cases of assault, bullying or harassment not only provides a potential remedy for the individual member but can also act as a deterrent for others. With more than 20,000 violent incidents recorded in the NHS and local government in Scotland last year this legislation can play a part in delivering the comprehensive package of measures required to tackle harassment at work.

Contacts list:

Dave Watson
d.watson@unison.co.uk

@P&I Team
14 West Campbell Street
GLASGOW
G2 6RX

Tel: 0845 355 0845
Fax: 0141 307 2572

UNISON Scotland acknowledges the support of Thompsons Scotland in preparing this briefing.

Scottish Executive | Scottish Parliament | Briefings Home

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Further Information

Contacts list:

Dave Watson
d.watson@unison.co.uk

@P&I Team
14 West Campbell Street
GLASGOW
G2 6RX

Tel: 0845 355 0845
Fax: 0141 307 2572

UNISON Scotland acknowledges the support of Thompsons Scotland in preparing this briefing