#19877 - Harassment And Wilkinson - Tort Law

Harassment

s.1(1) Protection from Harassment Act 1997: A must not do something which (a) amounts to harassment of another, and (b) he knows/ought to know amounts to harassment. s.3(1) says a breach or apprehended breach may be the subject of a tort claim.

Part 2 of the Equality Act 2010 gives more detail. s.26 says harassment is one of three things. The harassment must have the effect of violating C’s dignity, or has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment to C. The three forms of harassment conduct are:

1. Engaging in ‘unwanted conduct’ related to a protected characteristic

2. Engaging in unwanted conduct of a sexual nature

3. Treating someone less favourably because they’ve submitted to or rejected unwanted conduct of a sexual nature or that is related to gender reassignment or sex.

Protected characteristics are age, disability, gender reassignment, race, religion, sex, sexual orientation.

Crime and Tort

Violating s.1 Protection from Harassment Act 1997 means you commit a rime (s.2) and a tort (s.3). There is no fault element.

Seriousness

As such, the courts have decided the conduct must be serious enough. In Majrowsji v St Guy’s and St Thomas’s NHS Trust, Lord Nicholls held it would be serious enough if it was ‘offensive and unacceptable’. Stalking is clearly captured. It’s more difficult in the case of communications, publications or broadcast because the freedom of expression is protected by Art 10 ECHR. As such, the courts have to consider whether the conduct is so unreasonable that it’s necessary and proportionate to prohibit the speech protected by Art 10.

Alarm and Distress

s.7(2) says harassing also includes alarming the person or causing the person distress. Baroness Hale in Majrowski held this includes conduct which doesn’t cause alarm or distress. C has to also react as if they’re being harassed – University of Oxford v Broughton. If C doesn’t know he’s being harassed, he can’t sue (Shakil-Ur-Rahman v ARY Network).

The bit about causing distress is just the effect, it does not say what the conduct must be. The conduct is defined elsewhere for harassment, but the conduct must cause something like distress (Thomas v News Group Newspapers).

Targeting and Calculating

Lord Phillips in Thomas offered a partial definition of harassment: conduct targeted at an individual calculated to produce alarm or distress and is oppressive and unreasonable.

Targeting: Briggs LJ in Levi v Bates held a person could claim under harassment if they weren’t the target provided the effect on them was reasonably foreseeable and direct. In that case, the harassment was targeted at T, but T’s wife – C – could claim because the harassment involved giving out T’s telephone number, which he shared with C. However, Briggs LJ said mere distress because someone else is being harassed isn’t enough for a claim.

Calculating: doesn’t mean D intended to bring about an effect in C. s.1(1) says being ought to know of the effect is enough. s.1(2) says ought = reasonable person in possession of the same information would think it amounted to harassment. May LJ in Majrowski also referred to calculating in the objective sense.

Course of Conduct

Course of conduct a one-off act. Although in Kelly v DPP, leaving 3 messages on an answering machines, all listened to in one go, was enough for a course of conduct.

In Hills, hitting someone in April then again in October wasn’t a course of conduct. In Curtis, hitting, or threatening to hit, someone on 6 occasions over 9 months wasn’t enough either. Textbook thinks course of conduct needs to be with the same goal. So if X and Y live together, and X screams at Y to make Y feel bad that day, then does the same a month later, this isn’t a course of conduct. If X wants Y to leave and screams at Y one day to achieve this, but it fails, then does it again a month later the same aim, this is enough. In Iqbal v Dean Manson Solicitors, the CA said not every occasion in a course of conduct need be experiences by C as harassment. If Dumped rings Ex to ask how things are going, Ex may think nothing of it. But if Dumped does it again the next day and asks the same thing, it may be apparent the first call was part of the course of conduct.

Scope of Liability

Damages even for harms not foreseeable: Jones v Ruth.

Defences

s.1(3)(a) – acting for the purpose of preventing/detecting a crime. In Hayes v Willoughby, D wrote hundreds of letters to the authorities, claiming his former employer was guilty of white-collar crimes. The majority said the defence would only work if there was some logical connection between the evidence available to D and his conduct. The defence wouldn’t work if D was using reasoning so outrageous in its defiance of logic as to be perverse.

s.1(3)(c) – reasonable conduct. Thomas v News Group Newspapers: unreasonable only if running a series of critical articles on an individual amounted to an abuse of the freedom of the press. An example of this, given in that case, was if the campaign was designed to stir up racial hatred. The test for reasonableness is very vague.

VL still applies – Majrowski.

Wilkinson v Downton

In O v Rhodes, the UKSC reaffirmed this is an independent tort. It would be committed:

• Conduct element: words or conduct...