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.
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The course of conduct must involve conduct
on at least 2 occasions.
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The harassment includes causing the person
alarm or distress.
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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 off…you 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.
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