The Protection from Harassment Act 1997 prohibits a person from pursuing a course of conduct which amounts to harassment of another.  A breach of this Act may allow a claim for damages to be brought for any anxiety or financial loss that the harassment has caused.

Case law has already established that an employer can be vicariously liable for harassment by one of its employees, so long as that employee committed the harassment while “acting in the course of his employment”.  It is also well established that an employee is regarded as acting in the course of his employment where the act is “so closely connected with his employment that it would be fair and just to hold the employer vicariously liable”.  The following case shows the need for employers to be vigilant.

A Lithuanian national worked as a shelf stacker in one of Sainsbury’s supermarkets in Scotland.  He was racially harassed by Mr X, also an employee of Sainsbury’s, who openly held extreme racist views. Mr X frequently made racist comments and was aggressive and argumentative.  The Lithuanian national complained to his line manager but no suspension or warning was implemented, and no attempt was made to ensure that the two men did not work together.

On one occasion when the two men were working together an argument broke out. This was followed by a further argument, which took place in the staff toilets, during which punches were thrown.  Shortly after, Mr X was seen pacing up and down, talking to himself.  Sadly, he later took a knife from the kitchenware section of the store and fatally attacked the Lithuanian employee.  He was subsequently convicted of murder and jailed for life.

The victim’s family commenced proceedings against Sainsbury’s in the civil courts under the Protection from Harassment Act.  The basis of their case was that the conduct of stabbing a man to death was an extreme form of harassment for which Sainsbury’s should be vicariously liable.  The Scottish court concluded that the harassment had taken place over a lengthy period of time during which the two men had regularly worked together.  It acknowledged that the behaviour was frequent, beginning with verbal harassment of various kinds in front of other employees and escalating into physical harassment that included assault, death threats and, eventually, murder.  The court also decided that because all this had taken place during working hours and had happened in the two men’s place of work, the family did have a basis for their claim that Sainsbury’s was vicariously liable.

The case is going to be appealed further by Sainsbury’s and will be heard some time during the Spring of this year.

Although the outcome in this particular case is yet to be decided, it does highlight the importance of employers having clear anti-harassment and bullying policies, as well as a complaints procedure.  It also illustrates that if an employee raises a grievance regarding issues of harassment the employer must investigate the seriousness of the allegations carefully and take swift action to prevent further abuse if it believes that its employee is at risk.