MacRoberts Commercial Dispute Resolution Update 08/06/12
WORKPLACE HARASSMENT - A NEW ANGLE
As an employer, you accept that you bear the responsibility for the actions of your employees in the course of their employment. The legal term for this is vicarious liability. Courts have generally not subjected employers to liability if the employee has been acting in his or her own right, rather than on the employer's business, and, for example, an employer would not generally be liable for an assault committed by an employee. However, a recent case in the Court of Session should be followed with interest (Jelena Vaickuviene and Others v. J. Sainsbury PLC  CSOH 69).
Mr Romasov was fatally stabbed by Mr McCulloch while both men were working in a Sainsbury's store in Aberdeen. Mr Romasov's family argued that Sainsbury's were vicariously liable under the Protection from Harassment Act 1997 ("the 1997 Act").
The Court heard that the deceased and McCulloch often worked the same night shifts in store in Aberdeen; that McCulloch was a member of the British National Party and that it was common knowledge that he held extreme and racist views about Eastern European workers in the UK.
The Court also heard that McCulloch and the deceased did not have a good relationship, and that on one occasion members of staff overheard McCulloch make a threat that he was going to kill the deceased. Days before the incident, McCulloch had also racially abused the deceased causing him to report McCulloch’s behaviour to a line manager.
In order for Sainsbury's to be vicariously liable for acts of its employees, a "close connection" between the wrongful act of its employee (McCulloch) and McCulloch's duties of employment had to be established.
The family claimed that everything about the harassment was connected with the employment situation, and that the situations in which an employer may be vicariously liable for the employee’s wrongdoing must be viewed widely. Sainsbury's submitted that, although an employer could be vicariously liable for harassment under the 1997 Act, the family in this case had not established the essential connection between McCulloch’s duties as an employee and his wrongful conduct. They referred to various cases where the court had decided, for example, that an assault by an employee could be characterised as a personal matter unconnected to the employee's duties.
The judge said that the facts of this case were “unusual and extreme”, and that none of the case law presented was sufficiently similar in fact. However, she was not convinced that the claims made by the family were "bound to fail" on the basis that evidence would be required to determine whether the family could in fact meet the "close connection" test. In the circumstances the Court allowed the case to continue to a full hearing.
This is obviously a very unusual and tragic case. Whilst the Court has not yet handed down a final judgment, of particular note for employers is the following passage from the Judge's decision: "it appears that there may be sound policy reasons for encouraging employers to minimise or prevent harassment behaviour by their employees to fellow employees in the workplace. It is the employer who brings employees together to work together. The type of behaviour which may result due to the day to day interaction of fellow employees working together may clearly and foreseeably result in harassment (in the statutory sense) of one employee by another as they carry out their work. It is the employer who is able and may be bound to develop codes of practice and discipline to regulate their employees' behaviour to each other at the place of work.” Employers should ensure that they have appropriate policies in place and robust systems to ensure that they are effective in practice.
For further information, please contact Julie Hamilton or Karen McGill on 0131 229 5046.
© MacRoberts 2012
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