Veakins v Kier Islington Ltd, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Attorney(S)

Mr Mark Turner QC (instructed by Messrs Kelsall & Company) for the Appellant
Mr Andrew Hogarth QC and Mr Joel Kendall (instructed by Messrs Watmores) for the Respondent

Judges

LORD JUSTICE WALLER
LORD JUSTICE RIMER
LORD JUSTICE MAURICE KAY

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Veakins v. Kier Islington Ltd

Smart Summary

Factual and Procedural Background

The Appellant brought an action for damages alleging harassment at work by her supervisor, referred to here as Supervisor A, for whose acts the Respondent was vicariously liable. The Appellant claimed that the harassment occurred during a brief period when Supervisor A became her supervisor, leading to the Appellant taking extended sick leave due to depression. At trial in Brighton County Court, the claim was dismissed by the trial judge, who accepted the Appellant's evidence as unchallenged but concluded the conduct did not amount to harassment under the Protection from Harassment Act 1997. The Appellant appealed this decision.

Legal Issues Presented

Whether the conduct complained of amounted to harassment within the meaning of section 1 of the Protection from Harassment Act 1997, requiring conduct "of an order which would sustain criminal liability".
Whether the trial judge erred in his evaluation of the evidence by focusing on the likelihood of a successful criminal prosecution rather than applying the test of whether the conduct was "oppressive and unacceptable".
Whether the Appellant’s evidence, accepted as unchallenged, proved harassment on the balance of probabilities.

Arguments of the Parties

Appellant's Arguments

The trial judge erred in evaluating the evidence by not properly assessing the conduct against the legal test of harassment as "oppressive and unacceptable".
The judge focused incorrectly on whether a criminal prosecution would succeed rather than on the nature and severity of the conduct itself.
The Appellant’s unchallenged evidence showed conduct amounting to harassment causing clinical depression, which should satisfy the test for harassment liability.
The presence of malice in Supervisor A’s conduct, while not required for harassment, makes the conduct more likely to meet the threshold of "oppressive and unacceptable".

Respondent's Arguments

Even if the trial judge erred in not applying the "oppressive and unacceptable" test explicitly, his finding that any criminal prosecution would be stayed as an abuse of process is dispositive and fatal to the appeal.
The trial judge’s conclusion on the improbability of a successful criminal prosecution supports the dismissal of the claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Majrowski v Guy's and St Thomas' NHS Trust [2005] EWCA Civ 251, [2006] UKHL 34, [2007] 1 AC 224	Harassment must be conduct "of an order which would sustain criminal liability" and includes "oppressive and unacceptable" behaviour.	The court emphasized the necessity of this standard and criticized the trial judge for not fully engaging with the "oppressive and unacceptable" test.
Conn v Council and City of Sunderland [2007] EWCA Civ 1492	Clarification on the criminal threshold for harassment and the importance of conduct being serious enough to sustain criminal liability.	The trial judge relied heavily on this case to conclude the conduct was far from criminal liability, but the appellate court found this approach insufficient.
Allen v London Borough of Southwark [2008] EWCA Civ 1478	Adoption of the "oppressive and unacceptable" standard for harassment under the Act.	Used to reinforce the proper legal test for harassment that the court should apply.
Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46	Affirmation that harassment must be grave or fairly severe to warrant civil or criminal intervention.	The court referenced this case to highlight that conduct must be sufficiently serious to cross the line into harassment.
Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613	Difficulty of succeeding in workplace negligence claims based on stress, influencing the turn to harassment claims.	Referenced to contextualize the increasing use of harassment claims in workplace settings despite the Act not being primarily intended for such cases.

Court's Reasoning and Analysis

The court began by reiterating the statutory framework under the Protection from Harassment Act 1997, emphasizing that harassment requires conduct that is "oppressive and unacceptable" and of a severity that would sustain criminal liability. The trial judge had focused on whether a criminal prosecution would be likely to succeed, concluding it would not, and thus dismissed the claim.

The appellate court found this approach legally flawed because the trial judge did not explicitly apply the "oppressive and unacceptable" standard to the evidence. Instead, he concentrated on prosecutorial discretion and the likelihood of a successful criminal case, which is not the correct test for civil liability.

The Appellant’s unchallenged evidence described a sustained campaign of victimisation, humiliation, and demoralisation causing clinical depression, supported by medical evidence. The court found that this conduct crossed the threshold from merely "unattractive" or "unreasonable" to "oppressive and unacceptable".

The court rejected the Respondent’s argument that a criminal prosecution would be stayed as an abuse of process, holding that the conduct described would be sufficient to sustain criminal liability. The presence of malice further supported this conclusion.

Ultimately, the appellate court substituted a finding of liability for the Appellant and remitted the case for assessment of damages.

Holding and Implications

The court ALLOWED THE APPEAL, substituting a finding of liability for the Appellant on the issue of harassment under the Protection from Harassment Act 1997, and remitted the matter to the Brighton County Court for damages to be assessed.

The decision clarifies that in workplace harassment claims under the Act, courts must apply the "oppressive and unacceptable" standard directly to the evidence rather than focusing solely on the likelihood of criminal prosecution. Although the Act was not primarily intended for workplace disputes, it does not exclude workplace harassment claims. However, the court emphasized that such findings will be exceptional, given the high threshold required. Most workplace grievances remain more appropriately addressed through Employment Tribunal mechanisms rather than harassment claims under this statute.