Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34
Citation:Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34
Rule of thumb:What is the test for workplace harassment? Where inappropriate comments, demeaning tests or disproportionate criticism are given by management to a person this is workplace harassment – these must be clear however and not be innocuous as there is a fairly high test for conduct which is harassment & socially unacceptable taking into account human imperfection. Where this is aggravated by a diversity feature it is more serious.
Background facts:
The facts were that Majrowski was a gay man. As a result of this he was set unrealistic performance targets, critical of his work and given abuse – this was also done in front of others as well. A motivating factor behind this was also that it was done because she did not like him and he was a gay man.
Judgment:
The Court held that this constituted harassment by an employer. The Court further held that employers are vicariously liable when a manager does this to an employee. The Court also held that although there are different sections of the Act which apply to Scotland and England & Wales the law in both places is expected to generally be the same with any differences being exceptional. The Court held that in order for conduct to be deemed to be harassment it has to be oppressive and unacceptable, and that it has to go beyond minor irritations which cause upset, and could very much be deemed a criminal act if one person persistently went up in the wider world and did it to another person.
Ratio-decidendi:
"He claimed she bullied and intimidated him. She was, he said, rude and abusive to him in front of other staff. She was excessively critical of his time-keeping and work. She imposed unrealistic performance targets for him and threatened him with disciplinary action if he failed to meet them. She isolated him by refusing to talk to him. This treatment, he said, was fuelled by homophobia: he is a gay man…. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognize the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under Section 2... A final point should be noted on the interpretation of the 1997 Act. Sections 1 to 7 of the 1997 Act apply to England and Wales. Sections 8 to 11 make corresponding provision for Scotland. During the oral hearing of this appeal my noble and learned friend Lord Hope of Craighead drew attention to section 10. Section 10 inserts a new section, section 18B, into the Prescription and Limitation (Scotland) Act 1973. As explained by Lord Hope in his speech, the new section 18B envisages that the employer of a person responsible for harassment may be the defender in an action of harassment. In other words, section 18B appears to assume that in Scotland an employer may be vicariously liable. This is confirmatory of the conclusion expressed above regarding England and Wales. Parliament cannot have intended that in this respect the position would be different north and south of the border", Lord Nicholls
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.