Conn v City of Sunderland

Factual and Procedural Background

This opinion concerns an appeal by the Defendant against a decision of Mr Recorder Kearl QC at the Newcastle upon Tyne County Court dated 18 September 2006. The Recorder had given judgment for the Plaintiff for damages of £2,000 plus £100 interest for harassment under section 3 of the Protection from Harassment Act 1997 (the 1997 Act). The Recorder dismissed the Plaintiff's claims for damages and negligence, finding no causative breach of duty for psychiatric injuries, but ordered the Defendant to pay 75% of the Plaintiff's costs. The Defendant appeals this costs order and the finding of harassment liability.

The Plaintiff, born in 1947, had worked for the Defendant as a paver since 1962. The dispute arose from five alleged incidents of abuse, threats, and intimidation by the Plaintiff’s site foreman (referred to as Mr Dryden) between July and November 2000. The Plaintiff claimed these incidents amounted to harassment under the 1997 Act, resulting in psychiatric injury and ultimately termination of employment in June 2005.

The Recorder found two of the five incidents proved and held these amounted to harassment, rejecting the Plaintiff's negligence claim. The Defendant does not challenge the factual findings but contends that the incidents did not meet the legal threshold for harassment under the 1997 Act.

Legal Issues Presented

1. Whether the two incidents found proved by the Recorder constituted harassment within the meaning of section 1 of the Protection from Harassment Act 1997.
2. Whether the Recorder correctly applied the legal test for harassment, particularly the threshold of conduct that would justify criminal liability as outlined in Majrowski v Guy's and St Thomas's NHS Trust.
3. Whether the Defendant was vicariously liable for the conduct of the site foreman under the 1997 Act.
4. The appropriateness of the costs order made by the Recorder in light of the findings on harassment and negligence.

Arguments of the Parties

Defendant's Arguments

• Neither of the two incidents was sufficiently grave to constitute harassment under the 1997 Act.
• The first incident involved a threat to property (windows) rather than a threat to the Plaintiff personally, and the conduct did not cause intimidation to other colleagues present.
• The conduct did not meet the criminal threshold for harassment as clarified by Lord Nicholls in Majrowski, which requires conduct to be oppressive and unacceptable to justify criminal liability.
• The Defendant argued that the Recorder erred in law by not applying the proper test for harassment and that the conduct, although unpleasant, was within the bounds of bad-tempered workplace interactions.

Plaintiff's Arguments

• The case was essentially factual, for the Recorder to decide, and the Recorder was best placed to judge both facts and whether the conduct crossed the threshold into criminal harassment.
• The Recorder correctly applied the statutory provisions and made unassailable findings that the conduct went beyond unreasonable behaviour into oppressive conduct.
• In the first incident, it was reasonable for the Plaintiff to perceive the threat as personal and intimidating rather than merely a threat to property.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34	Clarification of the threshold for harassment under the 1997 Act, particularly the requirement that conduct must be of a gravity to sustain criminal liability to constitute harassment.	The court relied on Lord Nicholls' guidance to determine that conduct must be oppressive and unacceptable to cross the line into harassment. The court found that the Recorder failed to apply this test correctly, particularly in relation to the first incident.

Court's Reasoning and Analysis

The court first reviewed the statutory framework under the Protection from Harassment Act 1997, emphasizing that harassment requires a "course of conduct" involving at least two incidents and that the conduct must be such that a reasonable person would regard it as harassment.

The court considered the Recorder's factual findings on the two incidents proved. The first incident involved the foreman demanding information about colleagues leaving work early, coupled with a threat to damage property. The second incident involved a personal threat to the Plaintiff during a workplace confrontation.

Applying the guidance from Majrowski, the court noted that conduct must be of a criminal standard to qualify as harassment. The Recorder did not explicitly apply this test, particularly Lord Nicholls' threshold requiring the conduct to be oppressive and unacceptable to justify criminal sanctions.

The court accepted that the second incident crossed the threshold of oppressive conduct causing distress. However, the first incident did not meet the criminal threshold as the threat was directed at property, not the Plaintiff personally, and was not perceived as intimidating by other colleagues present. The court emphasized that bad-tempered conduct, although unpleasant, does not necessarily amount to harassment.

Accordingly, the court concluded that the Recorder erred in finding two incidents amounting to a course of conduct for harassment. Since one incident did not meet the threshold, the claim under the 1997 Act failed.

The court also addressed the Recorder's reasoning that the Plaintiff’s particular fragility was relevant to the Defendant’s knowledge of harassment, rejecting this as a legal error because the alleged harasser's knowledge must be judged objectively by the reasonable person standard.

Holding and Implications

The appeal is allowed. The court set aside the Recorder’s judgment finding the Defendant liable for harassment and dismissed the Plaintiff’s claim for damages under the Protection from Harassment Act 1997 in its entirety.

The direct effect of this decision is that the Defendant is not liable for harassment in respect of the incidents found proved, and the Plaintiff’s claim for damages is dismissed. The court noted that the costs order made by the Recorder may also be subject to successful appeal, but no final determination on costs was made in this judgment.

No new legal precedent was established; the decision reinforces the application of the criminal threshold test for harassment claims under the 1997 Act as clarified in Majrowski.